The ‘Neutron Option’ Democrats Could Use to Retake the Supreme Court

If Democrats needed another reason to despair, they got one on Wednesday, when Justice Anthony Kennedy, the so-called swing vote on the Supreme Court, announced he was retiring. This gives Donald Trump the chance to appoint a second justice, after Neil Gorsuch last year, to the bench. Since this nomination will be confirmed barring a Republican revolt in the Senate, liberals are looking ahead to a future where a conservative majority on the Supreme Court approves of causes ranging from voter suppression to the criminalization of abortion. Worse still, even if Democrats take back Congress this year and the White House in 2020, they'll have to get every new progressive policy past an unfriendly, far-right high court that will wield de facto veto power over the other two branches of government.

David Faris has a way to cheer frustrated liberals up—and maybe scare the hell out of everyone else. The Chicago-based political science professor came out with a book this spring called It's Time to Fight Dirty that imagines a variety of extreme hardball tactics Democrats can employ if they gain power in 2020 to ensure Republicans won't be able to stop their agenda. For Faris, getting rid of the filibuster that allows a Senate minority to block most legislation (a.k.a. the "nuclear option") is just the start: He's talking about shit like breaking up California into seven states and doubling the size of the House of Representatives. But he told me that the section of the book he "had a sleepless night over" was a chapter about what he called the "neutron option for the Supreme Court."

That would involve first proposing a constitutional amendment to end lifetime tenure on the court and pushing a proposal to let each president pick two justices per term, a compromise that Faris hopes would "end the court wars." He suspects Republicans wouldn't go for that, however, so he'd advise the next Democratic president to just "pack" the court as FDR tried to do in 1937 before Congress rose up against him and prevented it. That would involve passing a bill to expand the size of the court and allowing the president to appoint however many justices would be needed to create a new liberal majority, with the friendly Senate signing off on any appointee. (This would be legal, Faris points out, because there's nothing in the Constitution stipulating the size of the court, which has in fact fluctuated in the past.)

That kind of naked exercise of power would represent a new frontier in the destruction of the political norms that used to govern DC. But Faris isn't alone in thinking that the Republicans' unprecedented blockade of Merrick Garland, the moderate judge Barack Obama nominated to the Supreme Court in 2016, should demonstrate to Democrats that they need to stop caring about norms. After all, the thinking goes, the GOP obviously doesn't. I've seen versions of Faris's argument appear in the socialist magazine Jacobin and all over my Twitter feed in the past few days, so I decided to ask him about it.

VICE: Even if you had the White House and Congress, you'd need to pass a pretty controversial law to add justices to the court. Would moderate Democratic senators really support a court-packing move?
David Faris: I share your skepticism about whether the Senate will go along with this. Hopefully they will have enough seats in the Senate that they don’t need every single vote to do this. But if they don’t do things like eliminate the filibuster and pack the court in the first year [in power], what they are going to see over the course of that next president’s first term is law after law after law either be held up by the filibuster or get passed and then get smacked down by this conservative Supreme Court.

My gut tells me that the leadership is going to have to see the consequences of not playing hardball, and those consequences are going to be really dire. Potentially, the next Democratic president is not going to accomplish much of anything, which means we’ll probably lose the 2022 midterm elections and then probably loose the 2024 election too. Everything from gun control to healthcare reform—all of this stuff will be really vulnerable to this new majority on the Supreme Court. I’d like the Democrats to do this right away, but it may take a few months or a year of seeing their initiatives go up in flames before they take the possibility of playing this kind of hardball seriously.

If conservative justices on the court see this possibility developing, do you think they would moderate their opinions in order to appease the Democrats? Would they avoid slapping down Democratic laws to preserve their institution?
I think the only person who is venerable to that kind of pressure is probably [Chief Justice John] Roberts himself. It would take a while for anyone to see how that pressure plays out in the court. I wouldn’t count on the threat alone to make a difference in how these justices rule. The conservatives on the court right now are people who have spent their entire adult professional lives being trained in a particular interpretation of American constitutional jurisprudence—they’re committed ideologues, that’s why they’re chosen. If I’m putting myself in Neil Gorsuch’s shoes, I’m not going to switch my judicial philosophy because Democrats are threatening to pack the court. I'm going to hope my team wins the next election and we do it right back to them.

If Republicans came back to power, they might consider even more drastic action—in your book, you note that some conservatives are skeptical of judicial review. The GOP might say, "Well, the courts don't have any power." Do you worry about the long-term destabilization of the system because of this kind of thing?
I worry about the long-term trajectory of this democracy anyways. There’s a scene in Life of Brian where they’re executing this guy for heresy and he keeps taking the name of the Lord in vain when he’s about to be stoned to death and the Roman guards are like, “You’re only making it worse for yourself.” How could it be any worse? In my mind we’re in the midst of a serious crisis of American democracy. One of the two political parties has decided that none of the informal rules that have guided American politics for the last 50 or 100 years apply to them anymore and are pretty ruthlessly committed to shrinking the electorate and preventing people from voting.

It doesn’t matter what the next Democratic president does, there’s going to be a hysterical response from the right. In my mind, holding back because of the fear of escalation or the fear of that reaction—all that means is we’re not going to get anything done. I worry more about what’s going to happen to this country if Republicans come back into power in 2022 and 2024.

In 2016, I held firm to the idea that Republicans would be punished at the polls for not seating Merrick Garland—it was the final stage, I guess, in my political radicalization to see that the voters didn't care at all. I think Democrats could actually get away with this. By 2024, there will still be some people burning with rage about the court packing, but elections will be fought about other things, fundamentally.

"There are ways for the parties to come together to fix this. But the Republicans are never going to do it unless they feel what it’s like to have it done to them too."

Do other people in the Democratic coalition agree with you on this stuff? It's very radical.
A year ago when I told some friends, “What about court packing?” the reactions were not great from everyone. As the Trump administration unfolds I’m getting more and more positive reactions, including from institutionalists, people who work in the federal judiciary. Just given the way the Trump administration has been so relentlessly divisive and horrible, day by day I think it’s increasing the appetite on the left to play procedural hardball right back. Do I think this would have majority support today? Probably not, but I think it would poll well with the Democratic base. If Roe v. Wade gets reversed, I think that’s going to increase the appetite for court packing.

If Republicans hadn't blocked Garland's nomination in 2016, do you think you would still have the same view?
No. In fact, if they had appointed Garland and then Donald Trump had gotten elected, I think the Republicans would be talking about court packing right now, because Republicans were the ones talking about not letting Hillary Clinton fill any Supreme Court seat if they held the Senate. That was John McCain, that was Richard Burr, that was Ted Cruz—I think the party would have coalesced around that very quickly. In my mind the Garland stuff put us in this new world where you don’t get to pick a new Supreme Court justice unless you hold the Senate. I think that’s the new rule.

There are ways for the parties to come together to fix this. But the Republicans are never going to do it unless they feel what it’s like to have it done to them too. That’s how I feel right now. I was a center-leftist a year and a half ago, man! I voted for Clinton in the primary. The last two years of American history have really radicalized me.

This interview has been edited and condensed for length and clarity.

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