Did Mitch’s Lie Cost 9? Biden Could Add 2 New Supreme Court Seats

When Senate Majority Leader Mitch McConnell refused to hold hearings on Obama’s Supreme Court nominee for a full year before the 2016 presidential election, he said he wanted to leave the choice to the American voters. Now, with the election less than 46 days away, with Justice Ginsburg not yet laid to rest, he announces there will be a vote on Trump’s nominee. 

Historians remember the 1937 case West Coast Hotel Co. v. Parrish as “the switch in time that saved 9” – a sudden jurisprudential shift from the conservative Supreme Court signaling to President Franklin Delano Roosevelt that the Court would no longer oppose, but would instead defer to Roosevelt’s legislative agenda. Many historians credit this decision with saving the U.S. Supreme Court’s nine Justice makeup. Historians believed that, but for this decision, President Roosevelt would have pushed a 15 Justice court packing plan through Congress.

In light of Mitch McConell’s naked and corrupt pursuit of power, a Biden-Harris administration and a Democratic controlled Congress should revisit Roosevelt’s plan to increase the number of seats on the United States Supreme Court.

In his ruthless quest to pack the judiciary with conservative appointees, Mitch McConnell has demonstrated an absolutely depraved disregard for the institutions of our democracy. From obstructing President Obama’s policy agenda with unprecedented filibusters, to nixing  Obama’s proposed bipartisan condemnation of Russia’s 2016 election cyber-attack, to enabling Trump’s lawless embrace of foreign election infiltration, to rushing countless unqualified conservative judges to the federal bench, to now duplicitously promising a vote on Trump’s Supreme Court nominee before the next presidential inauguration, there is no principle or institution of democracy that McConnell has not perverted to satisfy his lust for power.

In so doing, he has opened the door for a Biden Administration to reevaluate several of the structural underpinnings of the federal government including the makeup of the Supreme Court, the number of federal circuit courts of appeals, and the filibuster.

McConnell’s intent, now come to fruition, was to effect generational change in the makeup of the federal judiciary by destroying democratic institutional norms. He has succeeded to a shocking degree.

For Democrats to fight on a battlefield of norms McConnell and Trump have shattered would guarantee not only for a failed legislative agenda, but the unfettered fulfillment of the ideological and societal changes of McConnell’s stacked judiciary.

Accordingly, a Biden-Harris administration with a Democratic Senate majority must consider implementing the following changes: (1) the elimination of the filibuster; (2) the addition of federal circuit courts of appeal to offset Trump-McConnell judicial appointments; and (3) the addition of at least two seats the United States Supreme Court bringing to the total number of justices to 11.

Congress has the Constitutional authority to determine the makeup of the judiciary including the number of seats on the Supreme Court and the federal judiciary, as well as the authority to determine its own rules in the case of the filibuster.

For a Democratic administration and Congress to do anything less, would be to acquiesce the ongoing subversion of democratic norms and simply surrender to Mitch McConnell’s corruption of our democracy.