Aaron Belkin has a simple but alarming message: If liberals don’t do something to change the makeup of the Supreme Court, the American republic may be permanently lost.
“I know at a theoretical level that democracies just cannot survive when courts are stolen,” Belkin, the founder of judicial reform group Take Back the Court, told Blue Tent.
A political science professor and director of San Francisco State University’s Palm Center, Belkin spent much of his career focused on LGBTQ+ issues. But Senate majority leader Mitch McConnell’s 2016 decision to hold an open Supreme Court seat for President Donald Trump — whom Belkin considers illegitimately elected — raised such fears that Belkin turned the entirety of his attention to democracy reform, starting with expanding the Supreme Court.
So Belkin went to Steven Gluckstern, the president and chair of the board at the Palm Center, and made his case that focusing on reforming the Supreme Court and expanding democracy were more urgent issues than most people seemed to understand. With an initial investment from both the Palm Center and Gluckstern himself, they recruited a team of policy and advocacy experts and launched Take Back the Court in 2018.
They’ve raised over $1.5 million in just two years, about a third of it coming from the Michael Palm Foundation, another third from five-figure donations from a dozen or so major donors and foundations like the Walter and Elise Haas Fund; the final $500,000 came from a single foundation that asked to remain anonymous, Belkin told Blue Tent.
His team includes numerous Obama administration veterans like Pod Save America co-host Dan Pfeiffer, while the group’s advisory board is made up of Harvard and Yale law professors and other well-known activists, academics and media figures.
The Court isn't just ideologically divided, it's completely compromised
At the core of Take Back the Court’s work is a view that Republican-appointed judges are not the monastic umpires they claim to be, but political appointees carrying out the agenda of the GOP. This reality spells doom for progressives hoping to pass a laundry list of ambitious political reforms.
“Everything we want to do faces the massive impediment of the court,” says Sean McElwee, president of Data for Progress and Take Back the Court’s director of polling and research. “The Republicans in robes are willing to twist the Constitution to fulfill their ideological goals.”
This worldview is not without evidence: In a white paper for the American Constitution Society, a liberal legal group, Senator Sheldon Whitehouse studied the 78 cases from 2005 to 2018 where the court’s decision put five conservative justices in the majority and four (or at times, three) liberals in the minority, finding that in 73 of those “partisan” cases, the court ruled in favor of “conservative or corporate donor interests.” Whitehouse further concluded that in more than half of these cases, the majority opinion strayed significantly from or avoided legal principles associated with conservative judicial philosophy. In other words, conservative Supreme Court justices continually ruled in favor of GOP interests, even if it meant departing from long-held legal doctrines.
“The Supreme Court has become a fact-free zone, and that is extremely dangerous when the highest court in the land makes critical decisions that sabotage democracy on the basis of bullshit,” Belkin said, specifically citing the court’s 2013 decision to overturn parts of the Voting Rights Act in Shelby County v. Holder.
As things have grown worse, more Democrats are coming around
The idea of court expansion has gained traction on the left, but remains an uphill battle. That’s not necessarily anything new for Belkin, though, who spent years advocating for gay rights in the armed forces.
“What I took from those fights against the military was that there actually is a way to fight big institutions and to use research and to use truth, for a lack of a better word, to move social justice forward,” Belkin said.
Court-packing has become popular among progressives like Rep. Alexandria Ocasio-Cortez and her soon-to-be colleague Mondaire Jones, while more mainstream liberals have also begun openly advocating more Supreme Court justices, including New York Times columnist Jamelle Bouie and former Attorney General Eric Holder. Vice President-elect Kamala Harris previously refused to rule out court expansion, as well, though President-elect Joe Biden has voiced resistance to such extreme measures.
For Belkin, expanding the courts is one piece of a three-part plan to save American democracy. In his view, Democrats must also eliminate the senate’s filibuster and pass H.R. 1, a bill that includes automatic voter registration, a prohibition on gerrymandering, and expands transparency for money in politics, among a grab bag of other small-d democratic overhauls.
Each of these prongs will be impossible without a Democratic Senate, and even then, appear highly unlikely. But without a change in the courts, Belkin hopes those skittish about court-packing come to understand that it may all be for naught.
“The institutionalists [in the Democratic Party], I would argue, do not see that the constitutional hardball that Republicans have been pursuing for the last generation, and that the court has been pursuing for the last generation, have all but destroyed democracy,” Belkin said.
“And the constitutional hardball that needs to be pursued now is the only way to get democracy back.”
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