Packing the court to save it? A Minnesota judicial moderate ponders

When word came that Supreme Court Justice Ruth Bader Ginsburg had died, one name popped out of my mental source file: retired Minnesota Supreme Court Associate Justice Paul Anderson.

No, Ginsburg and Anderson weren't famous pals like Ginsburg and the late Justice Antonin Scalia had been, though Anderson reports that he was acquainted with the feminist legal icon, and at least once compared notes with her on case law.

Rather, Anderson came to mind because four years ago, no Minnesotan was more exorcised than he over the failure of the U.S. Senate's Republican majority to give even perfunctory consideration to Merrick Garland, then-President Barack Obama's nominee for the high court vacancy created by Scalia's death on Feb. 13, 2016.

Senate Majority Leader Mitch McConnell claimed that the vacancy had arisen too close to the next presidential election to warrant Senate action. "Let the people decide," McConnell intoned. Anderson took to the stump with words like "dereliction of duty" and "unpatriotic," accusing McConnell of giving the judiciary a corrosive partisan taint.

So what does Anderson say now to McConnell's full-throttle reversal and hellbent determination to put Trump nominee Amy Coney Barrett on the Supremes before the Nov. 3 election?

"This is so dangerous to the future of the courts — and the country," Anderson lamented last week.

Four years ago, he sounded angry. Last week, he seemed more worried than outraged. His prime concern wasn't abortion rights, or the Affordable Care Act, or potential legal challenges to the 2020 presidential election — all of which opponents of Barrett's nomination say are at stake. Rather, it was something Anderson rightly sees as fundamental to America's well-being: courts that people can trust.

McConnell and his caucus are "eroding the legitimacy of the courts," he said. "They are creating an idea in the minds of many people that the courts are just another bunch of politicians, up for sale, and you won't have a fair hearing unless you are rich or a member of the right party."

That idea is toxic to the respect for the courts that orderly representative democracy requires, he said. "I've seen how that thinking radicalizes people to do desperate things, even heinous crimes."

Anderson, 77, was a Republican Party activist before being appointed to the judiciary in 1992 by Gov. Arne Carlson. He shed his party label as he steeped for 21 years in Minnesota's tradition of judicial nonpartisanship. Today, he qualifies as a rarity — a public voice above the partisan fray.

He's torn about what ought to come next, if, as appears likely, Barrett is hustled onto the Supreme Court before Halloween. He's wary about a hasty retaliatory response from Democrats if they take control of the Senate in 2021. But he also worries about what will ensue if the Supreme Court acts as an impediment to majority rule.

"When a court is out of step with the majority thinking of the country, the people will be radicalized. They'll be in the streets," he fretted. "Before this, I never would have said, 'Let's add more members to the court.' Now, maybe it will be necessary, to preserve the country."

His emphasis in that last sentence was on "maybe." If Democrats take charge of the executive and legislative branches of the federal government, he advises that they consider modest moves to add members to the high court. "I would do it in such a way that it would sunset. Only add two, and allow the size to move back to nine with retirements." That is how Minnesota reduced its Supreme Court from nine to seven members after the creation of the Court of Appeals in the 1980s, he noted.

For an institutionalist like Anderson, even entertaining the possibility of court-packing is a big concession. It's a marker of the degree of danger he perceives in this moment for the nation.

It's also an acknowledgment that in any system that calls itself a democracy, majority rule must matter. Too often in today's United States, majority will is thwarted for structural reasons. The Electoral College allows for the election of a president who loses the national popular vote. The U.S. Senate's Democratic minority today represents 15 million more people than does its Republican majority. A rigid two-party system allows for plurality rather than majority rule when third parties arise. (That's something ranked-choice voting, now in use in Minneapolis, St. Paul and St. Louis Park, would help correct.)

Those who find that much minority rule acceptable should ask whether it's sustainable, especially if the nation's courts become widely seen as the minority's tool.

Lori Sturdevant is a retired Star Tribune editorial writer. She is at lsturdevant@startribune.com.