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The Death Of Ruth Bader Ginsburg Means The Constitution Is On The Ballot


It didn’t take long after Ruth Bader Ginsburg’s death for the left to trot out arguments for packing the Supreme Court.

“If the Democrats are unable to block Trump’s nominee, there is but one choice should Joe Biden win the White House and the Democrats take back a majority in the Senate: pack the Supreme Court,” argued an article at The Nation. “If McConnell pushes through a nominee, President Biden should pack the court,” ran a headline at the Washington Post.

The New York Times’ Michelle Goldberg went further, arguing not only that Democrats should pack the court if Republicans manage to fill Ginsburg’s now-vacant seat, but that if they even try, “Outraged people should take to the streets en masse” in an effort to grind the Senate to a halt through civic unrest.

It’s not just hysterical columnists who are calling for a court-packing scheme if Biden wins. House Judiciary Chair Jerry Nadler endorsed the idea in a tweet on Saturday, as did former Obama Attorney General Eric Holder, Rep. Joe Kennedy III, and a host of other Democratic elected officials. House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer both alluded to it. (Pelosi is also refusing to rule out a second impeachment of Trump to delay Senate efforts to confirm a Supreme Court justice.)

Take Them at Their Word

This isn’t just empty rhetoric, they mean it. And packing the court with at least two additional seats—one for Ginsburg and one for Merrick Garland, whom Democrats feel is entitled to a seat simply because President Obama nominated him—is just the beginning of what Democrats will try to do if Biden wins the election. Schemes are now afoot to pack the court, abolish the Senate filibuster, and grant statehood to Washington D.C. and Puerto Rico.

What all these moves have in common is that they would erode the constitutional mechanisms in place that Democrats see as impediments to their complete control over the levers of government power.

Expanding the number of states, for example, is a work-around for what they would like to do but can’t quite bring themselves to say outright: abolish states’ equal representation in the Senate. Why, they ask, should sparsely populated conservative states like South Dakota get as many votes in the Senate as California and New York? By adding what Democrats believe would be permanently blue states, they could cement their control over the Senate and stop worrying about what Americans in South Dakota or Wyoming think.

The same logic applies to getting rid of the Senate filibuster. Once Democrats are in control of the Senate, why should a minority of GOP senators be allowed to stop them from carrying out their designs? The common thread here, from court-packing to new states to ending the filibuster, is that Democrats believe they have an obligation, once they gain power, to ensure they never lose it again. If that means shredding the parts of the Constitution that have held them back in the past, then so be it.

That, in turn, means there’s more at stake in November than the electoral fortunes of one Donald J. Trump. The Constitution itself is on the ballot.

Democrats Won’t Stop at Packing the Court

Do voters realize that? Every Republican running for office in November should make sure they do. GOP candidates, and above all Trump himself, should be at pains to point out that what we’ve seen previously from Democrats will seem like child’s play compared to what we’ll see if they win the White House and Senate.

To be clear, what they tried to do the last time they held these branches was pretty egregious. In 2014, every Democrat in the Democrat-controlled Senate voted effectively to abolish the First Amendment under the pretext of regulating campaign finance. The constitutional amendment that then-Senate Majority Leader Harry Reid and other Democrats supported would have given Congress and state legislatures the power to impose spending limits—which is to say, limits on speech—on unions, corporations, nonprofits, individuals, and even candidates who wanted to criticize elected officials in the run-up to an election.

It was also during Reid’s tenure as majority leader that Senate Democrats deployed what Washington called “the nuclear option,” changing Senate rules in 2013 to allow presidential nominees for all executive branch and judicial positions except the Supreme Court to advance with a simple majority of 51 votes. Democrats, frustrated with GOP filibusters of Obama nominations, decided the best response was to remove this impediment to the exercise of power.

They should have been more careful. Democrats’ abolishment of the filibuster is one reason the GOP-controlled Senate under Majority Leader Mitch McConnell has been able to confirm so many federal judges. As Reid admitted in The New York Times a few years back, “I doubt any of us envisioned Donald J. Trump’s becoming the first president to take office under the new rules.”

You would think Democrats had learned their lesson. What they thought was a permanent majority under Obama somehow didn’t hold together in 2016, and they have spent the last four years refusing to accept that reality. If they manage to gain power this time around, expect even more extreme measures to circumvent and erode constitutional protections against majoritarian rule. They might start by packing the Supreme Court, but they won’t end there.