Democrats’ dilemma: Eliminate the filibuster or pack the Supreme Court

Adding justices now is fraught with risk and could further politicize a court that is already too politicized

Senate Minority Leader Chuck Schumer speaks at a news conference on Capitol Hill on Sept. 22, 2020. (Caroline Brehman/CQ Roll Call file photo)
Senate Minority Leader Chuck Schumer speaks at a news conference on Capitol Hill on Sept. 22, 2020. (Caroline Brehman/CQ Roll Call file photo)
Posted October 19, 2020 at 7:00am

ANALYSIS — Democratic senators have framed the looming confirmation of Amy Coney Barrett to the Supreme Court as an existential threat to Americans’ health care, women’s reproductive rights and civil rights.

Progressives among them say the Democrats should respond by increasing the number of justices on the court if they sweep the election next month.

But Democrats need not go that far, or take on the political risk associated with packing the court, in order to reduce the Supreme Court’s power. By eliminating the legislative filibuster and reducing the threshold for passing Senate legislation to a simple majority, they can rebalance the scales in Congress’ favor.

Senate Minority Leader Charles E. Schumer says all options are on the table, including eliminating the filibuster, should the Democrats take Senate control in January. Unencumbered by the need to win 60 votes for legislation, and accompanied by President Joe Biden and a Democratic House, he could pass bills to restore the health insurance individual mandate that the court has already ruled constitutional. Democrats could also, for the first time, pass laws to legalize abortion and same-sex marriage, two of the other hot-button issues they raised at Barrett’s hearing.

Such an approach has myriad advantages over packing the court. The filibuster, as my colleague Jason Dick has written, is not a sacred creation of the country’s framers but a rule that has evolved and changed as circumstances demanded. Most recently, the Senate reduced the threshold from a two-thirds vote to just 60 in 1975.

And both parties have used the budget reconciliation process, which bars filibusters, in order to pass major legislation. The Democrats did so to pass the 2010 health care law known as the Affordable Care Act. Republicans did so to pass the 2017 tax law. If there’s already a rule that permits a majority to pass such hugely consequential measures, why not apply the same standard to everything?

To a public that hardly understands the issue, and thinks that America is a democracy, the concept of majority rule won’t be a hard sell.

By contrast, packing the court is laden with risk. The court has had a bench of nine justices since 1869. A previous effort to add justices, by President Franklin D. Roosevelt, was perhaps the greatest blight on an otherwise revered tenure. Adding justices now would further politicize a court that, as Barrett’s hearings show, is already too politicized.

And it opens a can of worms. If Democrats proceed, Republicans will likely add additional seats when they return to power.

Eliminating the filibuster “won’t be seen as as radical by the public,” says Marty Paone, a senior adviser at the Prime Policy Group lobbying firm who spent three decades working the Senate floor for the Democratic leadership. “Packing the Supreme Court is tailor-made for being vilified, for being outside the norms.”

GOP laments

Republicans will frame the filibuster’s elimination as a power grab. But Republicans, in this past week’s nomination hearings, have themselves made the case for a more powerful Congress and a less powerful court.

It is the GOP that has long held that the court should defer to legislators in all but the most clear cases of constitutional violations. Listen to Texas Sen. Ted Cruz. As Democrats warned that Barrett would overturn the 2010 health care law, Cruz said it should be Congress that decides the law’s future.

“Those questions should be resolved in this body, in the elected legislature. It is not a justice’s job to do that. It’s not the court’s job to do that. It is the elected legislature’s job to do that,” he said.

Cruz undoubtedly will vote no if a Democratic Congress in 2021 moves to solidify the health care law by eliminating the filibuster. He won’t have a leg to stand on, having voted in 2017 to eliminate the law in the unsuccessful GOP budget reconciliation attempt.

A newly empowered Congress will offer greater differentiation between the legislative and judicial branches, something Cruz and his colleagues, if they are true to their word, should celebrate.

Consider Louisiana Republican John Kennedy’s lament at Barrett’s hearing that Congress had ceded “a lot of power to the federal judiciary.” He explained: “Our founders intended federal judges to exercise judicial restraint and to understand the special role, scope and mission of the federal judiciary vis-à-vis the United States Congress.”

Republicans might also embrace a power structure that disarms the “robed masters” they have criticized on the high court. Haven’t Republicans long argued that the enduring polarization surrounding abortion is the result of the court circumventing the democratic process?

If the people’s representatives in Congress pass a law legalizing abortion, as a Democratic Congress could do next year by eliminating the filibuster, opponents of abortion can then focus their energies on convincing voters to elect them to repeal that law.

One can foresee a filibusterless Congress run by Democrats in a perennial tit for tat with a conservative Supreme Court, with the former passing laws and the latter striking them down. But a majoritarian Congress will be able to fix laws that the court finds flawed. It is only the filibuster that has prevented Congress, for instance, from reinstating sections of the Voting Rights Act and the Bipartisan Campaign Reform Act struck by the court in its Shelby County and Citizens United decisions.

Politicians who object to controversial court decisions express frustration because justices sit for life and change precedent rarely. They are stuck. But members of Congress have to stand for election. Those out of power can take solace in the chance they will return to it.

Pitfalls

Still, there are hazards in eliminating the filibuster. Richard Arenberg, who was an aide to former Senate Majority Leader George Mitchell and is now a senior fellow at Brown University, has written a book defending the filibuster. He calls it the “soul of the Senate” and foresees chaos if it’s eliminated. 

A great danger “would be the shifting back and forth of major policy,” Arenberg said. It would be easy, he notes, for partisans to repeal legislation passed by the other side whenever Congress changes hands: “It’d be very shortsighted policy to eliminate the filibuster, because the shoe is going to be on the other foot.”

He might be right. The court has protected rights where stability is a virtue, as with the right to same-sex marriage, and laws when unwinding them would upend lives, as with the Affordable Care Act. Congress might not be so farsighted.

But facing the real-world consequences of their actions, lawmakers might prove cautious. Barrett in her testimony to the Judiciary Committee said judges must consider “reliance interests” in weighing whether to overturn a law or precedent — that is, the harm a ruling would cause to people relying on that law or precedent, such as those who’ve gained insurance via the Affordable Care Act or who married after the court’s Obergefell decision legalizing same-sex unions.

It stands to logic that politicians who have to face those same voters would consider their plights as well. Recall that when the late Sen. John McCain cast the crucial vote to retain the Affordable Care Act in 2017, it was the lack of a suitable replacement to “deliver affordable, quality health care to our citizens” that drove him to break with his party.