Without control of the White House, there is of course only so much Democrats can do with their newfound power. And in the context of the myriad horrors of the first half of President Donald Trump’s second term, talking about what the party “should” do next is roughly analogous to deciding which out-of-control forest fire to fight first: There is not enough water, there are lots of worthy candidates, and all of them are getting worse.
One thing must be true, though: Whatever issues Democratic lawmakers choose to focus on—and, as the 2028 ideas primary gets underway, whatever ambitious ideas Democratic presidential hopefuls choose to support—the party must also have a plan for taking on the Supreme Court, which remains an existential threat to anything Democrats might hope to accomplish. Even if the party is fortunate enough to win a trifecta—the House, the Senate, and the White House—in 2028, things like a Green New Deal and Medicare for All and a new Voting Rights Act do not stand a chance before this six-justice conservative supermajority. Regrettably, what I wrote in 2020 is just as true today: If Congress passes any one of these proposals into law, the only real question is which justice ends up writing the opinion that kills it.
We could pass a Constitutional Amendment to reform the Court however we want, and the President doesn’t get a say. But it will take 2/3 of Congress and 3/4 of the States on board. That will be a hard bargain in these divided times.
What you can do with legislation is add justices to the court. So, if Democrats manage to take all branches of government in 2028, the very first bill they should pass into law is a bill to add 4 new seats to the court, effective in time for the start of the next Court session in September, nuking the fillibuster if necessary. Then, that’s the point where they go to Republicans and say “Work with us on a court reform amendment now, or President Newsom will appoint 4 progressive judges in their early 40’s to life terms on the Court, no backsies”. I bet that amendment gets passed in 6 months.
I don’t want Newsom appointing judges. I don’t want him in office anywhere.
The SC expansion would need to be tied to the number of federal circuits, assuming that’s why you suggested 4, so that the addition isn’t just met by more retaliatory additions later on.
While we are dreaming of a better future, why not also reform the House to build true representation based on population and remove the cap of 435. Revive the Wyoming rule.
Yup, you got it.
This is necessary, also. It doesn’t require an amendment, only legislation. It would make things fairer all around. But it is only practical if Democrats have nukes the filibuster for other reasons.
One SC Justice per federal circuit is just so downright sensical that I’m amazed it hasn’t already been done!
And yeah I agree on no cap for Representatives. It should be proportional to population of course, which means subject to change with every census.
Can you please explain what the Wyoming rule is?
Of course. Wikipedia would probably do a better job, but the idea behind it was that the smallest state by population serves as the baseline for representation within the House, which was originally intended to be based on population. At the time it was conceived, this was Wyoming.
This means that representation would be more accurately scaled to the population, so instead of rebalancing which states get larger shares of reps (CA, TX, FL, NY, etc) to accommodate the hard limit of 435, the House continues to grow to meet the demands of the populace. Under the rule, the House would grow well beyond 435 but it would mean one vote in Wyoming wouldn’t be worth roughly 68 votes in California, for example. Instead, CA would gain something like 17 reps and Wyoming would have 1.
Since the only outlined requirements for the House in the Constitution is that each state has one rep and there are not more than one rep per 30,000 citizens, this would require a repeal of the law capping the House at 435 (due to the physical constraints of the building!) and the passing of a new law to expand it. The Wyoming Rule was a proposal to do just that.
I see. That makes a lot of sense.
The capitol building is going to need some more chairs.