On Monday, the Supreme Court split four to four in a decision on whether Pennsylvania absentee ballots received up to three days after election day could be counted, allowing the Pennsylvania Supreme Court’s earlier affirmative ruling to stand. The traditionally-conservative Chief Justice Roberts lent the crucial fourth vote to the court’s liberal bloc, underscoring the impact Amy Coney Barrett’s confirmation to the bench could have on the future of voting rights in America. Free and fair elections are a crucial mechanism to halt democratic erosion, and the Supreme Court has already ruled in many cases to limit these rights, most notably, gutting the 1965 Voting Rights Act. With the addition of Barrett, the court will presumably be even more likely to strike down crucial protections to the franchise, imperiling the future of democracy in the country even further. This seems to lead logically to the conclusion that the courts must be reformed.
Yet, much of the literature on democratic erosion agrees that would-be authoritarian leaders see the judiciary as limiting and thus attempt to influence, alter, or pack the court. But what happens when the court has already been packed and contributes to the erosion of democracy? If the Democratic Party takes the House of Representatives, the Senate, and the presidency, court packing in the name of democracy is certainly a tempting option. However, we must ask ourselves is Democratic court packing a good long term solution for sustaining democracy?
Two of democracy’s guardrails must be considered when answering this question: institutional forbearance and mutual toleration. Mutual toleration consists of political rivals accepting one another as legitimate and having an equal right to exist, rather than viewing one another as a dangerous threat. Institutional forbearance refers to the norm that politicians respect the spirit of the law, in addition to its letter. Though politicians could legally behave undemocratically and cement their advantage for years, they should not do this because it antagonizes their political rivals in such a way that it jeopardizes the future of democratic competition.
Scholars agree that politicians have slowly eroded these two norms for years. Though rule change happens routinely in democracy, Mitch McConnell’s blocking of Merrick Garland in 2016 demonstrated a lack of mutual toleration. His subsequent rule change to allow for the confirmation of Amy Coney Barrett demonstrated a lack of institutional forbearance, as he effectively packed the court. Some may point to this instance, as a justification for potential Biden court packing. But we must be careful not to fall victim to a partisan double standard. In this time of already low mutual toleration and institutional forbearance, those in power should work to undo the recent democratic erosion. Packing the court would further diminish these norms, and continue the destructive cycle of democratic decay. Currently, both parties view the other as an existential threat, and if the Democratic Party gives into the temptations to pack the court it will only exacerbate this tension. For the longevity of our democracy, we cannot afford to degrade these norms any further. How then can we protect free and fair elections to help prevent further erosion?
If the Democrats take the Senate, the House of Representatives, and the presidency they should use their legislative power to pass new voting rights legislation. Though this legislation could be contested in court, with the exception of the Trump presidency, the courts have traditionally validated agencies between 64% and 81% of the time. Additionally, the Democrats should push for statehood for Washington, D.C. and Puerto Rico. Though statehood for Washington, D.C. and Puerto Rico would represent a rule change, rule change happens routinely, and this change would be in the spirit of democracy. As Dahl argues, all citizens in a democracy should “have their preferences weighed equally in the conduct of the government.” In fact, the status quo, attempting to limit representation for individuals within the United States out of fear that they might vote for the opposing party, exemplifies a lack of institutional forbearance and mutual toleration. By moving ahead in this way, the Democrats can succeed in widening the franchise, while also preventing the further politicization of the courts—in other words, they can do what is best for the long term viability of democracy in the United States.Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).  Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2018).  Nacy Bermeo, “On Democratic Backsliding,” Journal of Democracy 27(2016): pg. 11-12 Matthew Graham and Milan Svolik, “Democracy in America? Partisanship, Polarization, and the Robustness of Support for Democracy in the United States,” American Political Science Review (2020): pg. 392-409 Susan Stokes, “Trump and the Courts.” Democratic Erosion Lecture, University of Chicago, Chicago, October 21, 2020.  Robert Dahl, Polyarchy: Participation and Opposition (New Haven: Yale University Press, 1971) Chapter 1.