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Supreme Court Justice Ruth Bader Ginsburg’s death is both a terrible tragedy and a wakeup call to Democrats.
The tragedy lies in the loss of one of the country’s greatest jurists and activists, the wakeup call in the reminder that Republicans follow none of the Cold War era customs that too many Democrats — even radicals — call upon, instead of demanding fundamental change.
Republicans utilize every constitutionally permissible power to stack the Supreme Court and push forward their agenda. Democrats too often fail to utilize powers the Constitution gives them and then call for referees who do not exist. Changing our attitude gives us the chance to correct the flaws in the country’s political structure: the allocation of power in Congress, the Electoral College, the Supreme Court, and the voting booth that hamper our democracy.
Although the media frequently (and inaccurately) treat structural change as un-American, Democrats don’t need to look to foreign texts or political science theory for examples. They only need to look at the nation’s 19th century, when even bland, moderate politicians understood that their job was not just to celebrate the American system of governance but to fix it. While such structural tinkering carries grave risks, and while there may be good reason for Joe Biden himself to stay silent for now, not acting in 2021 would carry a grave risk as well: that Democrats appear to be a party that can explain its failures but not produce results.
When Democrats won the White House and Congress in 2009, they embraced Cold War relics: the filibuster, the reluctance to add states, the abhorrence of constitutional amendments, the importance of moving slowly on judicial appointments. When Republicans in turn won the Congress and then the White House, they operated under no such restraints. This has left us with an imbalanced Senate, an unfair Electoral College, Dreamers who cannot claim permanent legal status, and a stacked Supreme Court poised to overrule abortion rights and the Affordable Care Act. If Democrats win the White House and Congress this fall, what should they do to avoid repeating their past mistakes?
Following Ginsburg’s death, the first fix may be the Supreme Court, and there are clear historical precedents in the 1860s Congress. To protect the victories of the Civil War and Reconstruction, Republicans expanded the Supreme Court to 10 in 1863, then reduced it to seven to prevent the hated Andrew Johnson from appointing conservative replacements. They stripped away the Court’s jurisdiction over a key Reconstruction case, threatened openly to eliminate the court, and then restored the count to nine after Ulysses S. Grant’s inauguration. These were bold acts, but the alternative seemed be the destruction of the country. Eliminating the Supreme Court would have required a constitutional amendment; everything else could be accomplished by normal laws.
For those who consider today’s crises milder than 1860s conflicts, seemingly mundane periods in U.S. history remind us that structural change is in fact a normal American way to solve problems. Consider Benjamin Harrison, hardly an example of a fire-breathing radical, and known to most Americans for two bits of trivia: being the grandson of a president and interrupting Grover Cleveland’s nonconsecutive terms. But Harrison’s time in office provides a window into the way a relatively moderate, even boring, president might govern through a period of dramatic structural change.
When Republicans won the White House, Senate, and House of Representatives in the 1888 elections, they held unified power for the first time since 1875. But they also faced grave structural crises: Democrats used fraud, violence, and intimidation to prevent Black men from voting and to create a “Solid South” that stacked the Senate and Electoral College. Republicans won the 1888 presidential election without winning a majority of the popular vote, in part because of the suppression of Black Republican voters in the South.
Instead of bemoaning their fate, congressional Republicans went to work. In February 1889, even before Harrison’s inauguration, they pressed the lame-duck Congress for a bill to establish a simple path to statehood for six western territories. Certain that Harrison would call for something even more expansive once he was inaugurated, outgoing Democratic President Grover Cleveland signed the bill. Thus Republicans started to make up for ill-gotten Democratic gains. Over the next year, the United States added six states and 12 U.S. Senators. Tragically, Congress failed by a narrow margin to pass a voting rights act to protect Black voters in the South. Republicans saved themselves but not their most-loyal voters, and Democrats went to work disfranchising Black voters across the South.
Today’s Democrats often regret the addition of so many Western states, since Idaho, the Dakotas, Wyoming, and Montana help grant the Republicans their Senate and Electoral College advantages. The lesson, though, is not to complain about what can’t be fixed, but to copy the Harrison-era efforts and to fix the structural problems.
If Democrats sweep the White House, Senate, and House of Representatives this fall, they will have an opportunity to repair the nation’s broken systems, not just make new policies. One way is to follow Harrison-era Republicans by immediately adding Washington D.C. as a state — an utterly normal piece of legislation — and to offer simple paths to statehood for Puerto Rico, Guam and the U.S. Virgin Islands, if residents elect to claim statehood. Another is to learn from 1860s Republicans by changing the Supreme Court’s composition.
They could also imitate 19th century congressmen by offering constitutional amendments to protect voting, reduce gerrymandering, eliminate the Electoral College, and create term limits for Supreme Court Justices. Talking Points Memo put forward proposals to fix the country’s systems earlier this year in the Not Safe at Home series, and these suggestions only scratch the surface.
Those amendments may fail to gain sufficient state support for ratification, but complaining about a broken political structure without offering alternatives is a path to disillusionment and a catastrophic decline in turnout in 2022. Democrats fear appearing bold; what they risk is appearing weak. In 2009, Democrats controlled all three branches. They passed an important health care bill but let the filibuster block immigration reform and slow judicial appointments. They failed to take on basic and overdue tasks like the admission of Washington D.C. The party and the country have paid the price ever since in an imbalanced Senate.
Ginsburg’s tragic death and the likely approval of a Trumpian replacement by that imbalanced Senate remind us of the stakes and the opportunity: Democrats have seen the consequences of their caution in 2009. In 2021, they may have the opportunity to learn from the boldness of the 1880s.
Gregory P. Downs is a professor of history at the University of California, Davis, and author of After Appomattox: Military Occupation and the Ends of War and The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic.