Ted Cruz's Excellent Argument for Expanding the Supreme Court
If you want the Court to look like America, nine isn't enough
Ted Cruz is suddenly into identity politics.
“Black women are what, 6% of the US population?” Cruz said, after President Biden promised to nominate a Black woman to serve on the Supreme Court. “He's saying to 94% of Americans, 'I don't give a damn about you, you are ineligible.’"
First of all, I think it’s kind of funny (and not a little bit of projection) that Ted Cruz thinks that, were it not for Biden’s promise, hundreds of millions of Americans would sit around hoping they get picked. And I like the idea that, after this confirmation process is complete, people like me are going to sit going, “If only I were a Black woman, I’d be a Supreme Court justice by now.”
But more to the point, Cruz’s argument is the extreme version of the identity politics his party so often condemns. He’s taking the idea that “[fill-in-the -blank] institution should look like America,” and turning it on its head. Black women make up a fairly small percentage of the American population, he says, so the fact that none of them currently serve on the Court isn’t a problem at all.
Even by Cruz’s logic, you’d expect about a dozen Black women to have served on the Court throughout its history, as opposed to the real number, which is zero. But let’s put aside the many ways in which Ted Cruz is wrong, and focus on one way in which he’s right:
America’s a very diverse democracy, and growing more diverse each year. If you want our institutions to reflect that diversity, you can’t have just a handful of people running them.
If we want a Court that looks like America, in other words, we need a bigger Court.
Cruz (assuming he reads this newsletter, which he probably does, avidly) would counter that the Court shouldn’t reflect diversity at all. He would say that justices should instead be whoever’s most qualified. But he doesn’t really believe that. Instead, he’s been part of the conservative project to - quite successfully - pack the Courts full of judges whose rulings will most reliably line up with the political goals of the Republican Party, and who are most likely to make it three or more decades before leaving the bench.
After all, Merrick Garland was quite possibly the most qualified Supreme Court nominee in history, and Republicans like Cruz wouldn’t even give him a hearing, much less a vote.
What Cruz proposes isn’t meritocracy. It’s affirmative action for right-wingers.
What we should do instead is balance two important values. Supreme Court Justices should, obviously, be qualified to do the job. But we’re talking about a group that is currently less than .00004% of the adult population. However you define “qualified,” the number of people qualified to be a Supreme Court Justice is always going to be way larger than the number of available spots.
So qualified alone isn’t enough. It’s also important to consider the role of the Court in American life. After decades of Republics populating the courts with far-right conservatives (in other words, with ideological minorities), Americans are rightly becoming convinced that Justices’ personal views and experiences shape their rulings, and are feeling less and less well represented by the current set of nine. (Or more accurately, by the current majority of six conservatives.) Part of restoring faith in the Court is to make sure that people from all different backgrounds and walks of life can trust that they have a seat at the table - that justices will think about their experiences and perspectives.
Cruz is right that, for most Americans, nominating a Black woman to the Court won’t help in that regard. And that’s exactly why we need a bigger Court. You’ll never have - and probably never need - the population to be perfectly reflected by the Court. But you’re far more likely to have a Court that includes the many different viewpoints that make up America if you’re not limited to just nine people on the bench.
(This isn’t just true when it comes to race, by the way. Supreme Court Justices are inherently elites, but it would be great to have more voices on the bench who come from the West coast, or who started their careers as public defenders off, or who grew up poor.)
And if, as Cruz and his fellow travelers often indicate, they actually don’t care for identity politics, a larger Court ought to be the antidote they seek. After all, more seats (and also term limits, fwiw) would mean more vacancies. More vacancies would mean more nominations. More nominations would mean presidents wouldn’t have to choose between, say, nominating a Black woman in part to make the Court diverse and nominating a different, no less qualified judge who would be less historic. They could do both. We could stop fighting about this stuff, and have a Court that more Americans from both parties trust.
One gets the sense that, like a shark with swimming, if Ted Cruz stopped making controversial statements that were racially loaded without explicitly being racist, he would die. But I think the rest of us would be a whole lot happier.
And we’d certainly be happier with a Court that looks more like America, and which far more Americans could trust.