Read: The true victors of Trump’s Supreme Court nomination
Although Barrett did her best to avoid answering direct questions this week, several exchanges with Democratic senators on gay rights, voting rights, immigration, and workplace discrimination offered a kind of flash-forward to the fireworks ahead if and when this Court strikes down legislation passed by a future Democratic president and Congress, such as a new Voting Rights Act. “Those decisions are only going to make the national [electoral] majority larger, fiercer, angrier,” Wilentz, the author of The Rise of American Democracy, told me.
America has been here before.
In the late 1850s, the newly formed Republican Party was emerging as the nation’s majority party, consolidating support in the more populous North behind a platform of opposing the spread of slavery into the nation’s Western territories. But at that point, seven of the nine Supreme Court justices had been appointed by pro-Southern, pro-slavery Democratic presidents who had dominated American politics for the previous 30 years. That resulted in the Dred Scott decision of 1857; widely considered among the most egregious Court rulings in history, that decision declared that Congress had no right to restrict slavery from the territories. “What Dred Scott did, in effect, was to declare the platform of the Republican Party unconstitutional,” Wilentz said.
A similar collision between a graying Court majority and a new electoral majority erupted in the 1930s. When Franklin Roosevelt won the presidency in 1932, coalescing the New Deal coalition that would dominate American politics through 1968, seven of the nine Supreme Court justices had been appointed by the Republican presidents who controlled the White House for most of the previous three decades. That Court—memorably labeled “the nine old men” by the muckraking columnist Drew Pearson—struck down so many of Franklin D. Roosevelt’s initiatives that the president ultimately proposed to enlarge the Court, with his famous court-packing proposal of 1937.
Events overran Dred Scott: The Civil War, and then the passage of the Thirteenth Amendment, banning slavery, rendered it moot. And while Congress shelved FDR’s plan to enlarge the Court, the threat had its desired effect; in “the switch in time that saved nine,” one justice in the conservative block flipped to provide a narrow majority for FDR’s key programs, including Social Security. Afterward, justices’ death and retirement allowed Roosevelt to appoint eight new jurists to the Court over his three-plus terms.
Jefferson’s irritation in the early 19th century may most closely resemble the frustration building among Democrats, as the GOP races to seat Barrett before an election that could provide Democrats with unified control of government, perhaps resoundingly. In the 1800 election, Jefferson ousted Adams, and his Democratic-Republican Party took the House and the Senate, beginning a quarter-century of complete political dominance. But in a long lame-duck session after their 1800 defeat, Adams’s Federalists passed legislation substantially expanding the number of federal judges. Adams, much like McConnell now, worked so tirelessly to fill those positions that Jefferson privately complained he had “crowded [them] in with whip & spur.” (Separately, Adams and the Senate rushed to confirm John Marshall as the Supreme Court’s chief justice after the Federalist in the job resigned weeks after Election Day.) Even “at 9 p.m. on the night of March 3, 1801, only three hours before officially leaving office, Adams was [still] busy signing commissions,” wrote James F. Simon in his book What Kind of Nation.