In response to authoritarian remarks and actions over the past four years by Donald Trump, first as a candidate and now as president, The San Diego Union-Tribune Editorial Board has repeatedly expressed optimism that the strength of the U.S. democratic system will preserve democratic norms. In June 2017, we wrote that "the checks and balances built into government by the Constitution have kept Trump's excesses in check, and will keep doing so."
Unfortunately, our optimism is being chipped away. Both parties, not just the president, now seem open to throwing away norms. It's troubling enough that 41 Republican senators believe Trump can bypass federal lawmakers in appropriating $6.6 billion for a border wall that even a GOP-controlled Congress refused to fund. But as detailed in a new analysis in The Washington Post, the Trump administration no longer believes it has to follow a 1946 federal law requiring that changes in basic federal policies need to be justified with "legitimate explanations supported by facts." This is the primary reason that federal judges, including 15 GOP appointees, have rejected at least 63 policy changes promulgated by the White House. No administration in history has lost so often so quickly in court.
This record shows the judiciary remains a valuable check on executive overreach. But at least five Democratic presidential candidates _ Sens. Kamala Harris of California, Elizabeth Warren of Massachusetts, and Kirsten Gillibrand of New York, former Texas congressman Beto O'Rourke, and South Bend, Indiana, Mayor Pete Buttigieg _ have declined to rule out or suggested they may support an assault on the independence of the judiciary. They are receptive to expanding the U.S. Supreme Court with the express intent of adding liberal justices.
There is no constitutional requirement that the Supreme Court have nine justices. In the 1860s, there were briefly 10 members. But ever since, there have been nine. When President Franklin D. Roosevelt sought to add six new justices in 1937, he got nowhere. There was a considered view that if Congress and the White House were controlled by the same party, and that if an explicitly partisan decision was made to add justices, that would destroy the judiciary as a credible check on the executive and legislative branches. The next time the other party took over Washington, it would be their turn to pack the court.
But many Democrats have no patience for this long, measured view. Their anger over Trump and the Republican Senate's refusal to even consider President Barack Obama's 2016 nomination of Judge Merrick Garland consumes them.
Will lingering Democratic anger and Republican indifference to democratic norms fade _ or will they combine to yield a battered, dysfunctional America? It seems the nation will soon find out. Buckle up.
