At The Nation Elie Mystal declaims that there is “only one solution to the Amy Coney Barrett”:
It’s essential to remember that the reason Republicans have long sought to control the courts is that they serve as an antidemocratic check on the liberal agenda—and not just for an election cycle but for a whole generation. There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.
The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.
Reflecting on the original purpose of the Supreme Court might help to illuminate the situation. It was deliberately constructed as the least democratic and least political of the three branches of government. It should be entirely technocratic in the sense that its job is to interpret the law, ensuring that lower courts have interpreted it properly or determine that the law doesn’t address the issue brought before it at all. That’s how it is in a common law system. The laws as written and interpreted historically sometimes just don’t apply. It’s the legislature’s job to “do justice”, to make laws, and to advance political policy.
If the problem you’re trying to solve is how to guarantee that a progressive minority can advance its agenda using the least democratic branch of government by politicizing it more to your liking, Mr. Mystal is quite right. But, if your objective is depoliticizing the SCOTUS, I think there are some other prospective solutions.
First and foremost, the Congress could start doing its own damned job or have its its members thrown out of office for avoiding that but I guess that’s too much to ask.
Another prospective solution is the Congress could act under its powers under Article III, Section 2 of the Constitution and limit the appellate jurisdiction of the Court. The controversial cases that have created the furor are all appeals to the best of my ability to determine.
The final solution to the problem is amending the Constitution to abolish the Supreme Court. If it is only an unelected and undemocratic legislature, it has no reason to exist.
Enlarging the Court will solve nothing. Permanent majorities are a fantasy. Having enlarged the Court once, it will be done again and again.