Meet the man trying to convince America to swell the Supreme Court
For more than 10 years, Aaron Belkin slowly and methodically worked to shift public opinion on “don’t ask, don’t tell,” chipping away at the hardened view that openly gay Americans had no place in the military.
When the law was repealed in 2011, the San Francisco State University political science professor felt vindication in his belief that an aggressive communications campaign can bring success to long-shot causes.
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Now Belkin has a new target: the Supreme Court.
Belkin and fellow academic-activists have launched the 1/20/21 Project, which aims to add four seats to the Supreme Court soon after Inauguration Day after the 2020 election. Though Belkin said he isn’t looking for a partisan shift in the court and is instead taking back seats he claims Republicans stole, adding four seats could pave the way for an influx of progressive justices that could tip the high court way to the left.
To call this effort a long shot would be an understatement. It would require Democrats to take the White House, the House and the Senate in 2020, combined with a groundswell of support from the general public to blatantly pack the court.
But Belkin said his experiences with the “don’t ask, don’t tell” debate give him optimism that if he can spread information about the need to change the courts, eventually the public will get behind it.
“It led me to … believe that despite all the discussion of fake news and all the efforts to lie and try to distort public policy conversation … if you just tell the truth about what’s going on and you do so repeatedly and aggressively, eventually public policy can catch up to the truth,” Belkin said.
Belkin took that approach to the fight to allow gays and lesbians to openly serve in the military. As the founding director of the activist group the Palm Center, Belkin harnessed research, strategically timed news articles with a human touch and a relentless messaging campaign to try to debunk what he called a “10,000-pound boulder” — the entrenched idea that openly gay service members would hurt the cohesion of military units.
The campaign lasted more than 10 years before it produced legislative results, but the results both in and outside the Capitol were considerable. More than 100 generals and admirals wrote advocating the end of “don’t ask, don’t tell” after the Palm Center’s information campaigns and the majority of Republicans and regular churchgoers eventually opposed the policy as well.
While the circumstances around changing the structure of the Supreme Court are wildly different from the debate over gays in the military, Belkin is starting with some momentum.
The bitter partisan fight over President Donald Trump’s nomination of Brett Kavanaugh — who accused Democrats of ginning up sexual assault allegations to carry out “revenge on behalf of the Clintons” — has stoked fears among liberals that the Supreme Court could forcefully tilt right and unwind protections for women’s health and minority groups.
According to a Data for Progress and YouGov poll conducted from Oct. 11 to 15, 43 percent of Democrats already agree that the Court should be expanded, 28 percent disagree and 23 percent are undecided.
The campaign’s digital media director, Sean McElwee, has also had a hand in turning a far-out idea into a major legislative priority. He was one of the key advocates in the movement to abolish ICE, which under the hashtag #AbolishICE has become a common call among far-left Democratic candidates in this year’s midterm elections. McElwee hopes to repeat that fervor expanding the courts.
“We have too long tried to take on the court with the tools of law, but if the court is in fact a political branch, then instead of using the tools of law, you need to use the tools of politics,” McElwee said.
The project’s Twitter account is currently a flurry of hip memes and witty cultural references — a clear reflection of McElwee’s well-known Twitter presence — and has gained over 1,000 followers in only a few days.
But there will inevitably be fierce resistance as liberal activists attempt to pack the court.
Georgetown law professor Randy Barnett, who has written on libertarian interpretations of law and is a senior fellow at the Cato Institute, characterizes the project as another resistance movement targeting respected institutions. Barnett said some of the same people who argued that Trump is a threat to democratic institutions are arguing for the dismantling of institutions themselves, from the Electoral College to the Supreme Court.
Barnett cited the conventional method of replacing disagreeable justices: electing a president who can replace them.
“Under our current institutions, we have a Supreme Court that has had a stable number of justices for a very long time,” Barnett said. “But now, because finally it may be the case that the left has lost a majority of the court, because of that and only because of that, we’re now supposed to change the court so we can ensure the left wins again.”
The project organizers counter that Republicans’ tactics to obstruct presidential nominations to the courts merit an institutional change to the courts themselves. Former President Barack Obama’s nomination of Merrick Garland is the most glaring example, they said, and several of Obama’s nominees to lower federal courts were stalled on the Senate floor.
If the project reaches the momentum it’s aiming for, it would be the first change in the number of justices since Reconstruction and the first major movement to expand the Supreme Court since President Franklin D. Roosevelt.
But it would not be without precedent. Arizona State history professor Calvin Schermerhorn said the courts have long been a partisan battleground, with court expansion used as a tool in the 19th century for political means by presidents from all parties.
Barnett also said he hopes Democrats run on a platform centered on changing the courts, because he feels it would be widely unpopular. He was skeptical Democrats will be able to gain the seats necessary to change the court’s composition.
And with attention firmly fixed on this year’s midterms, the 2020 elections feel an eternity away.
But Harvard law professor Mark Tushnet, a member of the movement’s advisory board, said that, if anything, he hopes the project will get members of the public thinking about the courts critically instead of cementing their attitudes in deference to tradition. Tushnet has written about alternative forms of judicial review and the role of the Supreme Court and said that, even if Democrats lose in 2020, at least the discussion will be out there. The project’s organizers also argued that Republicans already spread demonizing information about Democrats, and Democrats still manage to score victories.
Belkin spoke from experience when he said a project like his will take patience. And he said that despite the project’s name, he won’t stop fighting if Democrats can’t take Congress or the White House in two years.
“No one’s going to go away if the Democrats don’t win,” he said.