Presidential Commission on the Supreme Court of the United States
campaign finance law.[88] But for the improper confirmation tactics of Republican lawmakers, the argument goes, the Court’s doctrinal trajectory might have been considerably different.[89]
Others emphasize that a failure to respond to what they regard as confirmation “hardball” by Republicans since 2016—as well as a failure to advance expansion as a viable option in the political process—might encourage future aggressive measures in the confirmation process, such as a refusal to hold hearings on any judicial nominee put forward by a President of the opposite party.[90] The judicial selection process has already become, in the view of many, a partisan spectacle.[91] Further escalation of the battles surrounding the Supreme Court could put additional pressure on the long-term legitimacy of the institution. On this account, a significant reform such as Court expansion may be needed to calm the controversy surrounding the Court, by attaching consequences to the Senate’s actions during the Trump years in order to deter future conduct of this kind.[92]
2. Preventing the Erosion of Democracy
Some proponents of expansion believe it to be essential to address the urgent circumstances brought on by developments in the Court’s jurisprudence that predate recent confirmation controversies but that have been accelerated by those appointments. They believe that these developments threaten to seriously and perhaps irreversibly damage the democratic process. These critics maintain that the Supreme Court has been complicit in and partially responsible for the “degradation of American democracy” writ large.[93] On this view, the Court has whittled away the Voting Rights Act and other cornerstones of democracy, and affirmed state laws and practices that restrict voting and disenfranchise certain constituencies, such as people of color, the poor, and the young.[94] This has contributed to circumstances that threaten to give outsized power over the future of the presidency and therefore the Court to one political party and to entrench that power.[95] As one witness before the Commission put it, the current Court “could easily invalidate federal legislation containing … democracy-entrenching measures … Those same Justices could easily invalidate measures designed to reduce the influence of money in politics, increase the transparency of political spending, restore the preclearance provision of the Voting Rights Act, and ameliorate economic inequality.”[96] Those holding this view regard expansion as required to ensure a Court more likely to uphold future voting rights and democracy-enhancing legislation constitutionally enacted by Congress and to prevent state legislatures from undermining or destroying the democratic process.[97] In arguing the case for expansion, proponents contend this moment is unlike any of the others in which this reform has been debated: Antidemocratic developments risk
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