AMY CONEY BARRETT was confirmed last week as the ninth justice on the U.S. Supreme Court. This is a travesty of democracy.

The vote on Barrett’s confirmation occurred just eight days before Election Day. By contrast, the Senate didn’t even hold a hearing on Barack Obama’s Supreme Court nominee, Merrick Garland. Obama nominated Garland almost a year before the end of his presidential term. Senate Majority Leader Mitch McConnell argued at the time that any vote should wait “until we have a new president.”

Barrett was nominated by a president who lost the popular vote by nearly 3 million ballots and who was impeached by the House of Representatives. When Barrett joins the court, five of the nine justices will have been appointed by presidents who lost the popular vote. The Republican senators who voted for Barrett represent 15 million fewer Americans than their Democratic colleagues.

Once on the high court, Barrett will join five other reactionaries who together will be able to declare laws unconstitutional for perhaps a generation.

Barrett’s confirmation is the culmination of years in which a shrinking and increasingly conservative, rural, white segment of the U.S. population has been imposing its will on the rest of America. They’ve been bankrolled by big business, which are seeking lower taxes and fewer regulations.

In the event that Joe Biden becomes president Jan. 20, 2021, and both houses of Congress come under control of the Democrats, they can reverse this power grab. It may be the last chance for the Democrats and, more importantly, American democracy.


For starters, increase the size of the Supreme Court. The Constitution says nothing about the number of justices. The court changed size seven times in its first 80 years, from as few as five justices under John Adams to 10 under Abraham Lincoln.

Biden said that if elected, he’ll create a bipartisan commission to study a possible court overhaul because it’s getting out of whack. That’s fine, but he’ll need to move quickly. The window of opportunity could close by the 2022 midterm elections.

Second, abolish the Senate filibuster. Under current rules, 60 votes are needed to enact legislation in that chamber. This means that if Democrats win a bare majority there, Senate Republicans could block any new legislation Biden hopes to pass.

The filibuster could be ended with a rule change requiring a mere 51 votes. There’s growing support among Democrats for doing this if they gain that many seats. During the campaign, Biden acknowledged that the filibuster has become a negative force in government. The filibuster is not in the Constitution, either.

The most ambitious structural reform would be to rebalance the Senate itself. For decades, rural states have been emptying as the U.S. population has shifted to vast megalopolises. The result is a growing disparity in representation, especially of nonwhite voters.

For example, California, with a population of 40 million, and Wyoming, whose population is 579,000, get two senators. If population trends continue, by 2040, some 40% of Americans will live in just five states and half of America will be represented by 18 senators, the other half by 82.

This distortion also skews the Electoral College because each state’s number of electors equals its total of senators and representatives. Hence, the recent presidents who have lost the popular vote.

This growing imbalance can be remedied by creating more states representing a larger majority of Americans. At the least, statehood should be granted to Washington, D.C. And given that about 12% of Americans now live in California — whose economy, if it were a separate country, would be the fifth largest in the world — why not split it into a North California and South California?

The Constitution also is silent on the number of states.

Those who recoil from structural reforms such as the ones I’ve outlined warn that Republicans will retaliate when they return to power.

That’s rubbish. Republicans have already altered the ground rules. In 2016, they failed to win a majority of votes cast for the House, Senate or the presidency, yet they secured control over all three.

Barrett’s ascent is the latest illustration of how grotesque the Republican power grab has become and how it continues to entrench itself ever more deeply. If not reversed soon, it will be impossible to remedy.

What’s at stake is not partisan politics. It is representative government. If Democrats get the opportunity, they must redress this growing imbalance for the sake of democracy.

Former U.S. Secretary of Labor Robert Reich is Professor of Public Policy at the University of California at Berkeley. His book “The System: Who Rigged It, How We Fix It” is available.