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The Most Important 2020 Decision No One is Talking About

Opinion | February 25, 2019

The 2020 Presidential Election lies over a year away, but already, Americans have a growing list of potential Democratic options to choose from. Re-energized Democrats are determined to defeat President Trump, but many, including myself, are struggling to pick their candidate. 

All the contenders appear to be supporting variations of a similar, fairly progressive platform. Endorsing Medicare for All and the Green New Deal, for instance, has essentially become a mandatory prerequisite to announcing a Democratic bid for president. The media and the public will have to dig deeper to find distinguishing factors in candidates’ personas and positions. This could be a good thing; substantive debate exposes voters to issues beyond the mainstream and, hopefully, allows them to make a better-informed decision. We can only speculate which issues will become pivotal to primary debates, but there’s one that’s been increasingly on my mind—reforming the Supreme Court.

In many ways, the nine Justices who sit on the US Supreme Court are the most important officials in our government. Not only do they ultimately decide what constitutes the law of the land, but they are also intended to be the most unbiased means of oversight over the Executive and Legislative branches.

Unfortunately, like many elements of our political system, today’s Supreme Court has been weaponized to uphold partisan power. Supreme Court nominations have become one of the most closely watched and hotly contested actions of the presidents who appoint them and senators who confirm them. Nominees once needed 60 Senate votes for confirmation, and often enjoyed widespread support across the aisle (lest we not forget that Ruth Bader Ginsburg, a largely popular, but also openly liberal figure, was confirmed by a vote of 96 to 3). Now, decisions are increasingly divided, and Republican Senate Majority Leader Mitch McConnell has reduced the confirmation threshold for the Supreme Court to just 51 votes.

Nothing has exposed the Court’s flaws more clearly than the controversial confirmation of Brett Kavanaugh last October. Anthony Kennedy, a historically moderate Justice and the Court’s key swing vote, had just announced his retirement. President Trump was granted his second Court nominee, after McConnell barred outgoing-President Obama from appointing Merrick Garland  to fill Justice Scalia’s seat. Any Trump pick would have been unpopular, but Kavanaugh’s case became an unprecedented ordeal when he was accused of sexual assault by Stanford University School of Medicine research psychologist and Professor of Psychology at Palo Alto University, Dr. Christine Blasey Ford.

 If the accusations were not enough to put Americans off of Kavanaugh, his behavior during his highly-publicized hearings certainly was. Not only was Kavanaugh irate, hot-tempered, and snappy—hardly the candor expected of a Justice—he was also openly partisan, denouncing the allegations against him as a political maneuver by Democrats, and “a conspiracy of the Clintons.”

Nevertheless, the Republican majority Senate confirmed Kavanaugh, shifting the Court undeniably right, and leaving many Democrats anxious about what another court vacancy in the Trump presidency could bring (RBG is going to live forever and that’s a fact, but, you know, the rest of them are fair game).

This is why the Court could become a relevant discussion in 2020. When issues like abortion rights and Deferred Action for Childhood Arrivals (DACA) could be overturned by the Court, Democrats look eagerly to the election not only to oust President Trump, but to win back a Senate majority to confirm liberal nominees. However, the chances of regaining this majority are slim.

 So, if the Court is going to change, it will be up to the president to reform it. There hasn’t been much public discussion about this yet; however, in the event that a Democratic president presides over a divided Congress, reform will almost certainly be considered.

 Recently, reform was brought up in an interview with one of the many million Democratic hopefuls, Kirsten Gillibrand, on Pod Save America. Pod host Jon Favreau asked Gillibrand if she was in favor of reforming the Court, specifically about adding more Justices. Gillibrand called Trump’s influence over the Judiciary “shocking,” and “destructive,” but wasn’t committed to the idea.

 But the proposal is actually nothing new; it’s called “court-packing” and was attempted by FDR in the 1930s. There’s also nothing in the Constitution that says the Supreme Court must have nine Justices—throughout history, the Court has held few as six, to as many as ten. But nine has been the standard since 1937, and the idea of adding seats is controversial. I understand why—I have an almost visceral reaction to the concept, and do feel like the Court should be an independent means of checks and balances untouched by partisan legislation. But what if its independence has already been compromised? And, moreover, how would I feel if Republicans tried to add seats to a liberal-leaning court? There’s no reason packing couldn’t become just another way to weaponize the Court.

Regardless, packing is periodically brought up in reform conversations, as is enacting term limits for Justices. But there’s another option that goes largely unmentioned: creating stronger transparency laws around the relationships between Supreme Court nominees and special interests groups.

 Open Secrets explains how one such group, the Judicial Crisis Network (JCN), a non-disclosing 501(c)(4) non-profit, has become “a key ‘dark money’ conduit for conservatives to funnel millions of dollars into Supreme Court battles while keeping their identities secret, [and] established itself the preeminent advocate of conservative contenders for the US Supreme Court.” Similarly, The Intercept reports that wealthy donors pumped 501(c) groups with “[upwards] of $15 million in reported advertising spending in order to convince the public to support Kavanaugh’s nomination.”

 Gillibrand emphasized these points in her interview, saying she would be more inclined to pursue dark money lobbying as a method of reform rather than targeting the Court itself. Many Americans may not even be aware of the role that money plays in Justice nominations, and that’s part of the problem—for all this money, there is about zero transparency and accountability. Of course, this is far from the only place where money plays an unduly influential role in politics. However, for the Judicial branch specifically, this lack of transparency automatically undercuts the integrity of the independent, nonpartisan, impartial reputation the Court so proudly proclaims.

 Again, Gillibrand pointed to Kavanaugh as a prime example of this problem. “The fact that a Supreme Court Justice can be wined and dined… where they can be lobbied incessantly by the wealthy special interests, I think we have to make that illegal,” she said. “I’d be very interested in looking at a very significant transparency agenda for the Supreme Court… I don’t think they’re held accountable [and] they are no longer public servants in the way that we have always imagined them to be.”

The extent to which other Democrats will agree with Gillibrand’s ideas remains to be seen. Several other politicians have spoken about reforming the court, including fellow-presidential candidate Elizabeth Warren, a well-known opponent of money in politics.

 I believe this is an issue that should hold particular importance for young voters and political activists. As young people, we are not just voting for a person or platform, we’re voting for our future. That’s a big ask with so much at stake in the coming years—be it the fate of our environment, our access to health care, or the future of civil rights. But while specific legislation can be undone or redone, the Court ultimately decides the constitutionality of our laws. The Justices being appointed today could impact those laws for decades.

 So when we’re thinking about the next president, we need to be thinking about this, and about a president who will be willing to boldly denounce what Republicans have done to the courts, and take action against it. Adding Justices or creating term limits could be a hard sell if the public believes those efforts to be solely supporting a politically motivated agenda. But stronger transparency laws and secluding nominees from special interest lobbying could drastically reduce the role of partisanship from the process, and put an additional check on power back in the hands of the people.