In response to the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, there have been proposals to eliminate the filibuster rule and also to enlarge the number of justices on the Supreme Court. The Centrist Independent Voter opposes expanding the size of the Supreme Court and getting rid of the filibuster rule in the Senate. Our feeling is that packing the Court would result in an endless cycle of Court expansion as party control shifts over time. Similarly, the end of the filibuster would mean that every time the planets aligned with one party in control of the House, Senate, and the Presidency, major legislation would be enacted or repealed, reversing course on a limitless number of issues.
But what if we had to choose?
Suppose we could either hold onto a stable size for the Court or hold onto the filibuster rule, but not both. What should we choose? In that case, my preference would be to keep the Court stable and move toward simple majority rule in the Senate.
The Role of the Court as a Safety Valve, Securing the Consent of the Governed
The current conservative Court is taking the position that the Court’s previous decision in Roe was constitutionally unjustified. They argue that the decision made by the previous Court was a legislative prerogative, and not up to the Court to decide based on a constitutional right to abortion.
The current Court is not taking a position on the policy issue; it is just saying that it is not up to the Court to decide this issue. I would have preferred that they let the precedent stand, but their argument is not unreasonable. But what if the federal legislature is institutionally unable to reflect popular sentiment? For roughly three quarters of a century, the Court has acted as a safety valve. In Brown v. the Board of Education, Roe v. Wade, Griswold v. Connecticut, Lawrence v. Texas, and in Obergefell v. Hodges, the Court has stepped in to resolve issues on which majority opinion, in most if not all of these cases, would have been frustrated by the filibuster rule. Whatever one thinks about the constitutional reasoning in these cases (and I am not disputing that reasoning), the Court served a useful purpose in securing the consent of the governed by reflecting the popular will. This may not be the proper role for the Supreme Court, but it can be argued that it was a useful one.
The Case Against Expanding the Court
There is nothing in the Constitution that dictates the size of the court. It has varied over time from as few as 6 to as many as 10. Re-establishing a liberal court would require increasing the Court to 13. If this were done we could expect that every time the House, Senate and Presidency were all controlled by the same party the Court would be enlarged again without limit. The notion of a massive Supreme Court, flipping every few years in its interpretation of the Constitution is enough to persuade most people that this would be a bad idea.
The Case for Abandoning the Filibuster Rule
If we reject enlarging the Court and the Court refuses to take on the role of providing a backstop when the legislature seems institutionally incapable of representing the will of the governed, what can be done? The obvious answer seems to be reforming the legislature to make it more responsive to the popular will. The simplest solution appears to be going to strict majority rule in the Senate.
The Case Against Abandoning the Filibuster Rule
The case against abandoning the filibuster rule is similar to the case against enlarging the Court. When the House, the Senate, and the Presidency are all controlled by the same party we could expect to see 180 degree turns in public policy, with old legislation being repealed and new legislation being added, reversing the course of public policy. Given the need for stability in public policy, particularly in areas that require long range planning, this seems like a recipe for disaster. To understand the reluctance of some Democrats for eliminating the filibuster one only has to contemplate a national prohibition on abortion.
How Often Does One Party have Total Control of the Federal Government?
Just how dangerous would it be to end the filibuster rule? Partly this depends on the frequency of single party control over the federal government. Unfortunately, single party control, for brief periods of time, is extremely common. Because so many people just vote the party ticket of the President they are choosing, we often have single party control upon the election of a new President. Split ticket voting in Presidential election years is relatively rare and stable at about 4%. The danger of frequent legislative flip-flops is, therefore, all too real.
So Why is Abandoning the Filibuster Superior to Packing the Court?
Abandoning the filibuster rule is better because it can be beneficial if it is done as a half measure. Packing the Court only changes the outcome if it establishes a new majority. Reducing the required vote for cloture (closing off debate and voting) to 55 Senators rather than the current requirement of 60 could yield benefits without losing the benefits of the filibuster rule altogether. Nothing is sacred about the 60 vote limit. In the past, the rule was reduced from 67 Senators to the current 60. Setting the threshold at 55 could allow some legislation, on which there is a measure of bi-partisan support, to get through the Senate. I am thinking that, with a little electoral luck, narrowly crafted legislative protection for the rights embodied under Roe could meet this test. I also think that stronger legislation on universal background checks, age restrictions on the purchase of assault weapons, and better enforcement of red flag laws might also meet this test. It is also the case that 55 Senators, from one party, might be achieved occasionally but not so often as a simple majority. This all makes for a more responsive legislature, but hedges, at least a little, against frequent policy reversals.
What can be done to make this happen?
The reason why the filibuster persists is that both parties recognize the danger of occasionally handing that kind of power to the other side. I don’t think that is likely to change soon, although the concern would be alleviated by the presence of a large number of moderate Republicans and Democrats in the legislature. Putting aside wishful thinking about a less polarized political environment, our best hope is that both sides will see the advantage of weakening, but not abandoning, the filibuster rule and leaving the Court alone. It allows both sides to believe that they might ultimately prevail and mitigates the outcome if they fail to do so.