Liberals have complained about Republican hypocrisy for decades. I’ve been one of them. It’s time to stop. 

The premise of such complaints is that two sides are playing a game by a common set of rules. But the GOP stopped playing that game a long time ago.

Justice Ruth Bader Ginsburg’s death two weeks ago has touched off the latest round of such handwringing. You all know the story. In 2016, when Justice Scalia died, the Republican-controlled Senate didn’t merely reject Obama’s proposed nominee to replace him. They refused even to consider him, holding no hearings, let alone a vote.

Senate Majority Leader Mitch McConnell and his allies argued then that, with less than nine months until election day, the people should decide who gets to appoint the next justice, determined by whoever wins the forthcoming presidential election. 

The premise that the president isn’t really president in his final year in office is as nonsensical as it sounds. McConnell’s decision to replace Ginsburg within weeks of a presidential election confirms that. Liberals have decried this latest bald-faced rejection of a precedent that McConnell claimed as sacrosanct four years ago. 

In the meantime, as McConnell has shown, the only rule that matters is that the composition of the Supreme Court is to be determined by whichever party has the power to do so. By that rule, if Joe Biden does win the presidency and Democrats retake the Senate, the question will be whether Democrats should pack the court. 

Those who are reticent about reshaping the court fear that to do so would turn it into a political football and undermine the stature and credibility of the judiciary, the branch of government typically deemed most immune to the crass realities of politics. Further, it’s what authoritarian leaders do, scholars of democratic backsliding warn.

On the other hand, many legal scholars have noted that the extensive American practice of judicial review—whereby courts scrutinize and overturn duly enacted laws that are deemed in conflict with larger legal and constitutional principles—is a global outlier. According to this line of thinking, perhaps our courts have too much status and authority to contravene small-d democratic will. 

To take one notable example, by a 5-4 vote, the Roberts court in 2013 gutted the Voting Rights Act on flimsy legal grounds. And that law had been most recently reaffirmed in the Senate by a 98-0 vote. Should courts have the authority to overturn such clear expressions of democratic will, especially on such questionable legal pretexts?

Of course, liberals relied on courts for a long time to reject laws they deemed antithetical to their values and interests. And now they face the growing prospect that many of their priorities could meet a similar end. The nomination and certain confirmation of the ultra-conservative Amy Coney Barrett puts Roe v. Wade and the Affordable Care Act in serious jeopardy. That this is a predictable result of the appointment of a new justice belies the idea that justices are neutral arbiters who just call balls and strikes, as Chief Justice Roberts famously avowed during his confirmation hearings in 2005.

Indeed, it would be hard to find a more nakedly partisan and political decision than the High Court’s 5-4 ruling in Bush v. Gore, in which five Republican justices effectively stopped a legal recount of the vote in Florida in 2000, which essentially handed the presidency to Republican George W. Bush. 

This is not to suggest that all court rulings equally reflect such nakedly political considerations. But the fact is that the judicial branch, up to and including the Supreme Court, is already “political,” and the least democratically accountable branch of government.

A decision to expand the size of the Supreme Court would be a perilous one, not to be taken lightly. But it would also be an arguably long-overdue recognition of the nature of the game of judicial politics Republicans have long been playing. When Republican elites respond by decrying Democratic hypocrisy for “politicizing the court” and unfair “power grabs”—and of course they will—Democrats need not apologize for having finally caught on.


JONATHAN WEILER is a teaching professor in global studies at UNC-Chapel Hill and co-author of Prius or Pickup? How the Answers to Four Simple Questions Explain America’s Great Divide and Authoritarianism and Polarization in American Politics. Comment on this column at backtalk@indyweek.com

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