The press is getting worked by Republicans on court expansion

image of the Supreme Court with the GOP logo

Citation Molly Butler / Media Matters

Donald Trump’s presidency has not been kind to journalists who pretended to believe Republicans when they pretended to be angry about Democrats violating political norms. GOP faux outrage ensured that the 2016 election turned on Hillary Clinton’s use of a private server as secretary of state; under Trump, administration officials ignore federal record-keeping statutes at will. Conservatives claimed to be shocked at the impropriety of former President Bill Clinton’s impromptu tarmac meeting with Attorney General Loretta Lynch amid an investigation into that server; four years later, they barely flinch as Trump demands the prosecutions of his political enemies and receives briefings from his own attorney general about ongoing probes that he deploys to bolster his campaign talking points.  

But Republicans keep working the refs, and the press keeps getting worked. The right is currently claiming to be enraged that Democratic presidential nominee Joe Biden has not ruled out the prospect of expanding the Supreme Court if Republican senators confirm Trump’s nominee, Judge Amy Coney Barrett, and Biden is elected. At the very moment that Republicans are violating political norms to cement conservative control of the court, they are demanding journalists focus on whether Biden might engage in his own norm violations to counter it in the future

This was a controversy deliberately manufactured by Republicans as a way of diverting attention from the radical policy outcomes that their judicial appointees support. During Wednesday night’s vice presidential debate, Mike Pence dodged questions about what would happen if Barrett joined other Republican-appointed Supreme Court justices in striking down Roe v. Wade’s abortion rights protections and the Affordable Care Act. Instead, he demanded that Sen. Kamala Harris (D-CA) explain whether she and Biden would expand the court if Barrett were confirmed. Harris responded by saying that the winner of the election should nominate the next Supreme Court justice, to which Pence repeatedly blasted her for not answering the question he asked to avoid answering the moderator’s questions. 

Conservative media figures and Republican politicians subsequently worked themselves into a frenzy over Harris’ nonanswer and demanded the press focus on the possibility of future court expansion by Democrats. Journalists, who are often entranced by GOP’s procedural “savvy,” obliged. They pored over and were largely unsatisfied with Biden’s statement that “they’ll know my opinion on court-packing when the election is over” (the comment “sowed additional confusion,” NBC News reported). 

In a sign of how much this discourse is dominating elite journalism, all four of the major Sunday morning broadcast political talk shows gave airtime to the right-wing complaint about potential court expansion. Moving the debate to this ground is the explicit Republican goal -- the party’s chair, Ronna McDaniel, said on CBS’ Face the Nation that Biden’s purported court-expanding scheme “should be all the media is focused on.” And indeed, the moderators of NBC’s Meet The Press, ABC’s This Week, and Fox News Sunday all asked their Democratic guests about Biden’s refusal to answer whether he supported court expansion on Sunday. 

Pence succeeded in dodging questions at the debate because journalists, bending to the conservative pressure, used their agenda-setting power to prioritize Harris’ response on court expansion. This Week was the only one of the four shows to mention Pence’s non-answer on Roe. None of them referenced his dodge on the ACA. And, incredibly, none of the programs mentioned Pence’s refusal to give a clear answer when asked during the debate what he would do if Trump lost the election but refused to allow a peaceful transfer of power, as he has threatened.

As Barrett’s hearings commence, this treatment helps Republicans keep the discussion off their past and current norm violations -- and the potential impact of the judiciary they have used those violations to establish -- and instead focuses it on possible future violations by a Democratic president and Senate that does not currently exist. 

In reality, Republicans have manipulated the size of the courts to achieve their political aims. Senate Majority Leader Mitch McConnell used unprecedented tactics to bottle up President Barack Obama’s nominees and hold vacant seats open for years. At the time, National Review’s editors described Obama’s attempts to fill vacancies as a “court-packing scheme,” while Republican senators proposed shrinking the size of a circuit court to prevent him from doing so. When Justice Antonin Scalia died in 2016, Republicans created a fake rule that Supreme Court nominees should not be considered in the last year of a president’s tenure rather than examining Obama’s pick -- and threatened not to fill the seat indefinitely if Clinton were to win. When Trump was victorious instead, those vacancies were suddenly a crisis, and so McConnell rammed through scores of right-wing nominees to fill the seats Republicans held open under Obama -- including Scalia’s. Now, following Justice Ruth Bader Ginsburg’s death, they’ve reversed their position and are trying to install Barrett. 

Republicans understand that the size of the court matters because the composition of the court matters. For decades, the right has selected, trained, and installed conservative judges on the bench, and now it is on the verge of a 6-3 majority of Republican Supreme Court appointees. Republicans effectively shrunk the Supreme Court by keeping Scalia’s seat vacant indefinitely because they wanted the judiciary to reflect their policy views; now Democrats are considering expanding it for the same reason. 

But there’s more at stake than norms. What matters isn’t the size of the court, but the outcomes for the public of its jurisprudence. Will Roe v. Wade stand or fall under a 6-3 court? Will the ACA? Would a court expanded by Democrats protect them? What would those outcomes mean for Americans? These are the questions Pence and his party are desperately trying to avoid. And a press more interested in pretending to believe Republicans who are pretending to be mad about court expansion plays into their hands.