Elie Mystal: 'If Mitch McConnell Can Do It, Then The Democrats Can Do It'

By Aliza Worthington — September 22, 2020

Dare we get our hopes up for serious court reform at the Supreme Court level? Well, when Elie Mystal is on My TeeVee twice in 48 hours telling it like it is about a potential 29-justice SCOTUS, I have to admit I allow the old expectations to rise a little.

Not a lot, don't worry, I'm not delusional, but hell, yeah, if you put Mystal in a room with the cautious Dems who are so concerned, "Oh, my, we can't let THIS happen, if we make it 11, then they might make it 13, and then where would it end???" I'm betting he could convince a lot of them that it's no big deal.

In fact, as he argued on AM Joy this past Saturday, here in The Nation six months ago, and other places for years before that, court expansion is not only a legitimate proportionate response to Mitch McConnell's ratf*cking of President Obama and the nation in 2016 and beyond. It's actually good for jurisprudence at the Supreme Court level. Tonight, he made his case on The Beat With Ari Melber.

Let's get the vengeance part out of the way. Mystal noted,

MYSTAL: As you laid out so brilliantly in your opening, Mitch McConnell has already changed the number of justices on the Supreme Court. He changed it from nine to eight. If Mitch McConnell can do it, then the Democrats can do it. If the Republicans want to say that the number of justices on the Supreme Court is a function of raw political power, then when the Democrats have raw political power, they are allowed to use it. And use it effectively.
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I do not think that this country can long survive a world where only Republicans get to appoint justices to the Supreme Court. That is the world Mitch McConnell would have us live in.

Melber agreed, and asked why it was so hard to get Democrats to understand that "if Mitch McConnell's hostage taking is rewarded, if there's no consequence, then you're actually incentivizing them doing it to you again." Mystal explained it was because Dems aren't thinking big enough...eleven justices? Thirteen? Why not 29? Why not 50? He said the Ninth Circuit Court of Appeals has 29 judges on it, and asked, "Can you give me an argument why the Supreme Court should be so significantly smaller than our circuit courts? I can't." And then he dropped one of the biggest reasons for that:

If there were that many justices on the Supreme Court, the death of ONE person would not throw the nation into a constitutional crisis: "The more justices on the Supreme Court there are, the less important any one random death is to our polity," said Mystal.

Furthermore, for people who are genuinely deeply concerned that court expansion is a potential "doomsday" scenario — Chuck Rosenberg, for example, Chuck Schumer, Joe Biden, etc. — Mystal did his best to assure them this was not in the slightest a scenario to fear. Au contraire.

If the Supreme Court operated more like the larger circuit courts, most cases would be heard by a randomly-drawn panel of three judges out of the 29 or 50 (or however many) justices sat on the court. Mystal suggested not only would this positively change the kinds of cases that would make it to the Supreme Court, but it would positively impact the NUMBER of cases that could make it to the Supreme Court. Furthermore, people couldn't be sure which judges would be deciding their cases, taking the politics largely OUT of the appointments.

Additionally, Mystal hit on the capacity for increased diversity. "Expanded Supreme Court would hear more cases. That's more opportunity for intellectual, gender, and racial diversity. Right now the Supreme Court is currently staffed by nine people who went to two law schools. What's up with that? You could fix that," he argued.

Melber was intrigued, suggesting that for extremely important cases, the court could meet en banc (in full) to decide those, and Mystal confirmed that was exactly what he was proposing. And that with an expanded judiciary, a consecutive series of 15-14 decisions would be extremely unlikely. Compare that to now, when the possibility a 5-4 split leaves the population on tenterhooks awaiting every single decision, and the likelihood of such a split is high? Which seems better for the country?

MYSTAL: Do you know how difficult it would be to have a string of decisions -- say the court is 29 people. Do you know how difficult it would be to have a string of high profile decisions that came down 15-14? It would almost never happen. Because, Ari, as you know, the law is frankly too complicated for that, right? These high-level jurists have too many things going on to break down along hard core party lines, as you add more and more and more people to the mix. So, again, from a perspective of making the court less political, having more justices, having their deaths not matter as much, all of those are good things, before you now reenter the hypocrisy of McConnell and Graham and the Republicans having the current court based only on their whims.

Please get Mystal into a room with the rest of these cautious Democrats. We are ready to use our power. Politeness is out the window. Fair is fair. What the GOP did to us is NOT fair. But expanding the number of justices on the Supreme Court WOULD be fair. To everyone.