The Journal Gazette
Friday, November 29, 2019 1:00 am

Democrats need Supreme Court counterbalance

David Placher

If the Democratic Party wins the White House and control of the Senate in the 2020 election, the conservative Supreme Court must be reckoned with to prevent Democratic legislative priorities from being ruled unconstitutional. The five conservative members of the nine-member court have cemented a solid majority for at least the next decade.

The health of 86-year-old liberal-leaning Justice Ruth Bader Ginsburg keeps everyone in suspense as she has been in and out of the hospital. If President Donald Trump gets another appointment, the court would surely move even further right.

The Democratic presidential nominee should campaign to expand the number of seats on the Supreme Court and let voters decide; the Republicans campaigned on filling a vacancy in 2016.

When the fire-breathing conservative Justice Antonin Scalia died on Feb. 13, 2016, Senate Majority Leader Mitch McConnell made it clear that President Barack Obama would not fill that vacancy. At the time of Scalia's death, the Supreme Court had five members appointed by Republican presidents and four appointed by Democrats. An appointment by Obama would have changed the court's ideological leaning.

When Obama nominated Merrick Garland, the Republican-controlled Senate refused to hold confirmation hearings. Senate Majority Leader Mitch McConnell wanted to leave the seat vacant until after the November 2016 election – almost 10 months from Scalia's death. McConnell believed voters should decide.

During the 2016 election, Russia coordinated attacks on the U.S. election to benefit the Republican candidate, Trump. Russia probed swing-state voter databases such as Florida and Wisconsin for insecurities; hacked Hillary Clinton's campaign, the Democratic Congressional Campaign Committee and the Democratic National Committee; released politically damaging information and spread conspiracy theories on the internet and on social media; held meetings with the Trump campaign; and was in discussion with the Trump Organization for a proposed skyscraper in Moscow.

McConnell was aware the Russians were meddling in the election to help Trump, but he didn't know the extent. McConnell refused to sign a bipartisan statement that specifically condemned Russian interference. With Russia's help, Trump was elected on Nov. 8, 2016, although he lost the popular vote by nearly 3 million votes. Trump's victory let him fill the vacancy McConnell had held open.

So far, Trump has placed the conservative Justices Neil Gorsuch and Brett Kavanaugh on the Supreme Court. Since Trump lost the popular vote, he has steered a branch of government in a direction that is not in line with the wishes of a majority of voters.

Article III of the Constitution establishes the Supreme Court but leaves it to Congress to decide the number of justices. In the past, Congress has shown a willingness to adjust the number. Initially, the court had six seats, but it expanded and contracted through the first half of the 19th century. The Tenth Circuit Act of 1863 added an associate justice, bringing the total number of associate justices to nine and one chief justice. So the highest number of Supreme Court members has been 10. In 1869, Congress settled on nine members and it has been unchanged since.

At the very least, the Democratic Party should consider resurrecting the 10th seat because there is precedent. If the Democratic Party just ignores the more conservative court, it may find itself celebrating in November 2020 and then in tears later as many new laws are struck down.

David Placher is an attorney and Fort Wayne resident.

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