Don't Believe the GOP Hype on Court Expansion

A new analysis shows Republicans didn't push the issue in 2020 Senate races

Court expansion is back in the news. Politico reported last week that President Biden has started staffing up the bipartisan commission on court reform that he promised in the campaign.

As you may remember, the idea of adding additional justices to the Supreme Court rocketed to the top of the political conversation after the death of Justice Ruth Bader Ginsberg. Democrats floated the idea as a possible response to Mitch McConnell’s plan to violate his own totally sincere and not at all opportunistic rule about not filling Supreme Court vacancies in an election year. Well, McConnell filled the seat, but we haven’t heard very much about expanding the court since then. What happened?

To be fair to the Democrats, the last few months have been a bit busy. There were the Georgia elections, the coup, and the insurrection. All of this is happening while the COVID pandemic rages onwards. But one of the reasons, we have heard so much less about court expansion is because Republicans have convinced people that court expansion hurt Democrats in the 2020 elections. According to the narrative pushed by Republicans, Democratic Senate candidates were cruising to victory in Maine, North Carolina, and elsewhere until the moment some folks started talking about expanding the court. Republicans claimed expansion jacked up Republican turnout that was lagging due to the insane, COVID-infected President without a message.

But a new analysis from Take Back the Court being released today punctures a giant hole in that narrative. [Disclosure: As previously mentioned in instances where I have written about court expansion, I am a paid advisor to Take Back the Court].

For all of their pre-election braggadocio about how they were going to hammer Democrats for supporting expanding the Supreme Court, TBTC’s research shows that Republicans barely mentioned the issue in their ads. According to the report:

In total, top-tier Republican candidates spent more than $16 million on Facebook ads in the 2020 campaign cycle. Ads about Supreme Court expansion comprised, at most, ​less than half of one percent​ of all money spent by these candidates in the 2020 election cycle.​ On an individual basis, the highest level of spending on ads related to court expansion was only around 6 percent of ad buys — and that was an outlier. In fact, only two of these top-tier candidates spent more than 1 percent of their ad buys to attack Democrats on court expansion. Even after the November election results supposedly showed expansion hurt Democratic candidates, Republicans didn’t focus on the issue in the Georgia Senate runoffs that determined control of the Senate -- a sure sign that even Republican strategists know that claims about expansion hurting Democratic candidates are baseless.

Looking at ad spending is the best way to understand which issues a campaign believes are most effective. Campaigns have limited resources and they only put money behind the messages that polling and analytics say are most impactful. The meager spending on court expansion advertising is evidence that Republicans looked at court expansion, decided that it wasn’t a winner, and advertised on other subjects that polled better.

Trust me, if Republicans thought attacking Democrats for packing the Supreme Court worked they would have poured money into that message down the stretch of the campaign.

Post Election Narratives Matter

If Republicans didn’t actually use court expansion to hold onto seats in Maine, North Carolina, and elsewhere, why are they so desperate to convince Democrats that they did?

It’s simple. They want Democrats to be afraid to use their political power.

Elections are complicated endeavors and are decided by a variety of nuanced actors. Rarely does one issue, ad, or gaffe make the difference. But election punditry is allergic to complications and nuance. The post-election narrative often gets boiled down to Democrats won or lost because of X. These oversimplified storylines matter. They become engrained in the political consciousness and dictate political strategy going forward. Various interest groups have a real stake in shaping the narrative.

After both the 1994 and 2000 elections, the National Rifle Association relentlessly pushed the idea that Democratic support for gun safety laws cost them dearly among voters. As a consequence, many Democrats were very reticent to push new gun laws for more than a decade.

Democrats shouldn’t be overly sanguine about the politics of court expansion. Polling shows that there is work to do, but we also shouldn’t believe the Republican talking points about how the issue helped them.

Republicans keep pushing this false narrative, because they are deathly afraid of Democrats unrigging the courts they spent years rigging.

Pushing back now is particularly important, because Senate Majority Leader Chuck Schumer recently said that Democrats were considering expanding the number of Federal judges below the Supreme Court. Congress used to increase the number of Federal judges to keep up with a growing population and caseload, but politics have kept the number of judges static for a very long time. While lower court expansion does not address the stolen Supreme Court seats, it is a big deal. It will be a big fight. Republicans will continue to try scare Democrats away from the issue.

But we don’t have to believe the hype.

[For more ideas about how to make the case for court expansion, check out a piece I wrote a few months ago.]