In his brief concurring opinion to Trump v. Hawaii, Supreme Court Justice Anthony Kennedy seemed to be pleading with posterity. Yes, it was true that Kennedy, long understood to be a moderate swing vote on the court, was voting to uphold President Donald Trump’s Muslim travel ban. But he did not want the world to see him as a bigot, a racist or an ally of international fascism.
“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or action,” Kennedy wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”
Though Trump was legally free to say whatever he wanted, Kennedy insisted, it would be very unwise for the president to continue going around bashing Muslims. Someone, somewhere might get the wrong idea. “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
A day later, Kennedy announced his retirement. In doing so, he turned over responsibility for replacing him to a president who, in addition to calling for “a total and complete shutdown of Muslims entering the United States,” has demanded that all immigrants seeking political asylum in the United States be deported, “immediately, with no Judges or Court Cases” ― an obviously unconstitutional denial of due process rights. Kennedy trusts a man who has bemoaned “shithole countries,” called for administering the death penalty to drug dealers and forcibly separated more than 2,300 children from their asylum-seeking parents, placing them in special caged camps. Kennedy had decided to grant more power to the president who has officially withdrawn the United States from the United Nations Human Rights Council.
“The Supreme Court, Congress and the executive branch are instruments of political power. All three are currently being used to advance the ideology and agenda of international fascism.”
Kennedy’s attempt to distance himself from the reputational stain of these abuses in Trump v. Hawaii was pathetic, and of a piece with his unrelenting, self-dramatizing narcissism. Precious few individuals ― Rebekah Mercer and Steve Bannon included ― have proved as effective in transforming Trump’s worldview into legal reality as Justice Anthony Kennedy.
It is time for the Democratic Party to stop pretending that the words of men like Kennedy matter as much as their actions. The Supreme Court, Congress and the executive branch of the U.S. government are instruments of political power. All three are currently being used to advance the ideology and agenda of international fascism. House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell and Anthony Kennedy all protest that they themselves do not personally harbor these terrible beliefs. Nevertheless, they find themselves professionally compelled to assist those who do.
Two months ago, the idea that the United States should abolish Immigrations and Customs Enforcement ― the militarized deportation enforcement agency ― seemed outlandish in Washington. On Tuesday, New York candidate Alexandria Ocasio-Cortez won a Democratic primary for a House of Representatives seat pledging to do just that. Rep. Mark Pocan (D-Wis.) has penned Abolish ICE legislation and is now courting co-sponsors. Two years ago, Medicare for All seemed like a pipe dream. Now it’s a standard agenda item for aspiring Democratic politicians, along with a federal jobs guarantee and ending private prisons. These ideas are animating the party faithful because they’re directed at people. They address actual problems facing real, flesh-and-blood humans. They are not scientific abstractions about the ideal functioning of perfectly modeled markets, or the procedural flow of the bureaucracy or the tenor of the discourse at leading think-tanks.
And none of these ideas ― much less what remains of the legacy left by former President Barack Obama ― will survive a Trump-friendly Supreme Court. Roe v. Wade is gone. Democrats have no choice but to implement structural reforms to the judiciary if they hope to prevent decades of rule by the alt-right in America. At a minimum, that will mean expanding the Supreme Court bench to 11 justices under the next Democratic president. Other reforms, including term limits to remove aging conservatives, may well be appropriate.
There is nothing magical about the number nine. It carries no great aesthetic appeal. Its crooked curl is stolen from the number six. It is audibly indistinguishable from the German word for “no” ― an unfortunate coincidence in an era of vitriolic far-right ultranationalism. Eleven, by contrast, is beautiful and symmetrical, a number so good it tells us twice. Ambitious reformers may even find reasons to love 13, 15 or 21.
“Democrats can’t get their ends ― a decent society of mutual respect and shared prosperity ― by ignoring the means of power.”
The court was founded in 1789 with just six justices and has included as many as 10 ― from 1863 to 1866, when a Republican legislature intentionally shrank the court size to seven justices to prevent President Andrew Johnson from making any appointments. In 1937, with the Supreme Court habitually striking down President Franklin Delano Roosevelt’s efforts to save the country from the Great Depression, FDR floated the idea of expanding the court to as many as 15 justices. The history of “court-packing,” as it became known, is unbecoming. But lawmakers keep coming back to variants of the idea because it works. Even after FDR retreated from his proposal amid a profound outcry from Southern Democrats, the justices sitting on the court got his message and began issuing more sympathetic rulings on the New Deal.
Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and John Roberts will not be so malleable. Democrats will have to follow through. But members of Congress are not elected to be polite. They are elected to exercise power, a fact well understood by McConnell ― who blocked Obama nominee Merrick Garland. The Senate majority leader didn’t hesitate to demand the speedy confirmation of whomever Trump picks to succeed Kennedy.
The choice between court-packing (in 2021) and international fascism should not be difficult. Democrats can’t get their ends ― a decent society of mutual respect and shared prosperity ― by ignoring the means of power. Playing nice with fascist enablers in Washington will not stop fascism.
CORRECTION: A previous version of this story indicated Alexandria Ocasio-Cortez had won a seat in the House of Representatives. She won a Democratic primary to compete for that seat.