Editor’s Note: Attorney Flint Taylor of the People’s Law Office in Chicago, who was a 2018 recipient of the Chicago ACS Chapter’s Abner Mikva Legal Legends Award, has recently published a book, titled The Torture Machine, Racism and Police Violence in Chicago. Given the historical and current significance of this book to both the legal and human rights communities in Chicago and nationally, we are republishing, with the permission of Democracy Now!, an edited portion of the March 20, 2019 interview that Taylor did about the book, and his 50 years of work fighting against racism and for justice, with  DN!’s co-hosts Amy Goodman and Juan Gonzalez. Taylor will be discussing his book at several locations in Chicago during September, will be presenting at the CUNY School of Law on the afternoon of October 3^rd and participating in a book panel at the Shomburg Center at 6:30 that evening. For more information about Taylor’s appearances, to purchase a copy of his book, or to schedule an appearance at your school or bookstore, please contact Haymarket Books at https://www.haymarketbooks.org/

Democracy Now! With Amy Goodman and Juan Gonzalez: https://www.democracynow.org/2019/3/20/the_torture_machine_flint_taylor_on

AMY GOODMAN: We look at the Chicago Police Department’s long history of violence against African Americans, from the murder of Black Panther Fred Hampton to the reign of torture overseen by commander Jon Burge. The brutality of the Chicago police force is laid bare in a new book by leading civil rights lawyer Flint Taylor. It’s called “The Torture Machine: Racism and Police Violence in Chicago.” The book exposes decades of corruption and cover-ups in the Chicago Police Department. We speak with Flint Taylor, who has represented survivors of police brutality in Chicago for nearly half a century. Flint, welcome back to Democracy Now! Why did you name your book The Torture Machine?

FLINT TAYLOR: Thank you, I named it The Torture Machine for two different but related reasons. First of all is rather obvious. On the cover, the torture machine, that was the electric shock box that the notorious Commander Jon Burge and his men used on many African-American suspects over that 20-year period that you just mentioned. But also “the torture machine” refers to Chicago’s machine, the notorious political machine, often known as the Daley machine and the Democratic machine, here in the city, which not only countenanced this torture, covered it up, but also was involved at the highest levels of the police department and, yes, the State’s Attorney’s Office, when Richard M. Daley was the state’s attorney of Cook County—were involved in this conspiracy, this scandal, that has gone on for so many decades in this city.

JUAN GONZÁLEZ: Well, Flint, I want to, first, congratulate you on the book. It is really a riveting account. It’s almost a forensic analysis of decades of collusion between judges, politicians, prosecutors and the police to basically engage in systemic human rights violation. But you start the book with an incident that, for many young people today, is not even part of history, but it’s not often covered history. And you make the statement that the killing of Fred Hampton and Mark Clark really was a seminal moment in the development of Chicago, in the modern history of Chicago. And I’m wondering if you could first give us a sense of why you believe that’s so,

FLINT TAYLOR: On December 4th, 1969, 14 Chicago police officers working under the control of the state’s attorney of Cook County—at that time, Edward Hanrahan—raided a West Side apartment where Black Panthers were sleeping. And one of those Black Panthers was the chairman of the Black Panther Party, Fred Hampton, a charismatic young leader, who was targeted not only by the police, but by, it turns out, the FBI. And that raid, which was covered up, was claimed to be at first a shootout, was later shown to be a total shoot-in. And then, over the years, as we and others were able to litigate a case in federal court, we were able to show not only that this was a vicious, racist attack on the Panthers and its leadership, where two men were killed and many others wounded, but it was part and parcel of the FBI’s COINTELPRO program, the counterintelligence program devised and implemented by J. Edgar Hoover over the years, which in the late ’60s targeted the Black Panther Party, and specifically Fred Hampton in Chicago, and, in fact, that the raid on the apartment was part of this COINTELPRO program.

JUAN GONZÁLEZ: And, you make the point in your book that that was the beginning of the mass resistance of the black community that eventually led to the election of Harold Washington as the first black mayor of Chicago. . . . [Film Clip about Hampton case shown] . . .  And so, Flint, the reality was, as you document in your book, that this was actually a direct assassination and that there was a long struggle, on your part, to—because you were there. You were able to get to the house the very day that Hampton was killed. Could you talk about this conspiracy to kill one of the rising radical leaders of the black community?

FLINT TAYLOR: Well, we see now—and it was uncovered during our trial in the ’70s—that the COINTELPRO program targeted black liberation organizations and leaders. And they specifically named targets—Dr. King, Stokely Carmichael, Rap Brown, Elijah Muhammad—and pointed to Malcolm X, as well. And as the Panthers rose and became powerful, first in Oakland and later in Chicago—as you can see from the clip what a charismatic, young leader, at 21, Fred Hampton was—Hoover and his people focused on the Black Panther Party and, specifically in Chicago, on Fred Hampton.

They had an informant in the Black Panther Party by the name of William O’Neal. He sketched out a floor plan that showed where Hampton would be sleeping. They went to the apartment. They supplied that floor plan to the police—the FBI did. They went to the apartment in the early-morning hours. And Fred was asleep. It appeared that he had been drugged by O’Neal or some other agent. And he was murdered in his bed.

Over the years, we uncovered documents that showed this floor plan. That was all covered up, as well. It showed that the FBI took credit for this raid as part of its COINTELPRO program. And it showed even that O’Neal, after the raid, was given by Hoover and the people in Chicago a $300 bonus, what we later called the “30 pieces of silver” for the informant, O’Neal, for setting up the raid. So, he was receiving from Hoover a bonus for the success of the raid at the same time he was serving as a pallbearer in Fred Hampton’s funeral.

AMY GOODMAN: Flint Taylor, you pursued this case civilly for 13 years. What came out of it?

FLINT TAYLOR: Well, a lot of what I’ve just mentioned came out of it. The narrative shifted over the years, thanks to the community, thanks to the Panthers and thanks to the lawsuit that we filed. And as you could hear from the clip, the position that the police took—and they thought they were going to get away with it scot-free—was that this was a shootout, that these were vicious Black Panthers, all of that. Well, because we and the Panthers went to that apartment, we were able to show that it was a shoot-in. We were able to change the narrative to the fact that it was an unjustified and violent shoot-in by the police. But over the years, as we were able to join the FBI in the case, we were able to uncover these FBI documents that showed that, yes, it was not just a murder, it was not just a shoot-in, but it was an assassination. It was a political assassination straight from Washington and the FBI.

JUAN GONZÁLEZ: Flint, very shortly after the murder of Fred Hampton, you got involved in another case of the Wilson brothers, and which began the uncovering of the Jon Burge scandal, that, again, would take you decades, really, to finally get some measure of justice.

FLINT TAYLOR: Yes. The Wilson case arose in February of 1982. Two white police officers were shot and killed. The two black perpetrators had escaped. And the city of Chicago, under [Mayor] Jane Byrne and Police Superintendent Brzeczek, set out on the most vicious and terroristic manhunt in the history of the city. They terrorized the black community. They kicked in doors. They dragged people out of their houses. If they thought that they had some information about the killings, they tortured them. They tortured them with suffocation. They tortured them with all kinds of medieval types of torture. They finally found the two people who the eyewitness identified as the persons who were involved in the crime. And the person who was identified as the shooter was Andrew Wilson.

Andrew Wilson was taken back to a police headquarters on the South Side of Chicago. And this notorious commander, who at that time was a lieutenant in charge of the manhunt, by the name of Jon Burge, led the torture of Andrew Wilson that included electric shock with the torture machine, that is mentioned and depicted in my book, and suffocation with a bag. They handcuffed him across an old, ribbed steam radiator and electric-shocked him so that he was burned across his chest. And they also burned him with cigarettes, beat him and got a confession from him.

This came out at that time, but nobody really cared. The state’s attorney of Cook County, Richard Daley, was informed specifically by a doctor and the police superintendent about this torture, and he chose to do nothing about it. Because he did nothing about it, Burge was able to, in the next 10 years, torture another 75 individuals—all African-American men.

And a few years after that, Andrew Wilson, who had been sentenced to death, filed a pro se complaint in federal court challenging his torture and suing Burge. That’s how we got involved. During his trial, an anonymous police source, who we later dubbed as “Deep Badge,” started to give me information that laid out exactly the map of what had happened, the systemic nature of the torture, the fact that Daley and his surrogates were involved, that the police superintendent, that the mayor were all involved.

And we followed that map, basically, for the next 20, 30 years, even as we sit here today, to uncover evidence that supported the idea that this was a systemic torture. This was something that sent people to death row. This was something that convicted innocent people. And, ultimately, all of this led to Burge’s firing. It led to, many, many years later, his conviction for obstruction of justice for lying about the torture. And, of course, it led to the remarkable reparations that the city of Chicago granted to the survivors of police torture and their families here a couple of years ago.

AMY GOODMAN: Flint Taylor, we’re going to break. This is Democracy Now! Flint Taylor, attorney with People’s Law Office, known as the PLO, has represented survivors of police torture in Chicago for nearly half a century. His new book, is The Torture Machine: Racism and Police Violence in Chicago.

The following is an interview with Nora Freeman Engstrom, Professor of Law and Deane F. Johnson Faculty Scholar, and Michelle Mello, Professor of Law and Professor of Health Research and Policy, both at Stanford University. This is reprinted with permission from the Stanford Law School blog.

On August 26, Judge Thad Balkman delivered a $572 million judgment against pharmaceutical giant Johnson & Johnson for the company’s role in fueling the opioid epidemic in Oklahoma. In the discussion that follows, Stanford Law Professors Michelle Mello and Nora Freeman Engstrom discuss the decision and how other cases tied to the national opioid crisis are developing.

The Oklahoma decision took many onlookers by surprise. How did the case unfold? And what did Judge Balkman find?

On Monday, Cleveland County District Judge Thad Balkman of Oklahoma issued a judgment that capped off a long and closely-scrutinized trial wherein the Oklahoma Attorney General faced off against Johnson & Johnson (J&J), claiming that J&J contributed to the opioid epidemic that has devastated the state of Oklahoma.

To understand the verdict, a bit of background is helpful. When Oklahoma initially sued, it cast the net broadly, asserting claims against several defendants under several causes of action.  Certain defendants (namely, Purdue and Teva) chose to settle rather than roll the dice at trial. (Purdue, the maker of OxyContin, agreed to pay Oklahoma $270 million and Teva, one of the world’s leading providers of generic drugs, $85 million; neither admitted wrongdoing.)  Further, over time, Oklahoma’s various causes of action got winnowed down to the singular claim that J&J had created a public nuisance by aggressively and deceptively marketing opioid products to Oklahoma’s doctors and patients.  This posture meant that Oklahoma’s victory at trial was far from a foregone conclusion, as public nuisance claims can be very hard to prove, particularly in cases that relate to dangerous products.

With that table set, the trial began on May 28, 2019.  In a crowded courtroom in Cleveland County, it stretched on for nearly seven weeks and featured dozens of witnesses and more than 800 exhibits. The trial was a bench trial, meaning there was no jury, but there was a written opinion explaining the judge’s decision.  Judge Balkman’s 42-page opinion offers a cogent summary of the evidence and governing law and, broadly, vindicates Oklahoma’s litigation strategy. The opinion finds that J&J engaged in a deceptive marketing campaign designed to convince Oklahoma doctors and the public that opioids were safe and effective for the long-term treatment of chronic, non-malignant pain. Further, this “false, misleading, and dangerous marketing” caused “exponentially increasing rates of addiction [and] overdose death,” which ravaged the Sooner State. The picture Judge Balkman draws is stark and, for J&J, devastating.

Are individuals suing drug companies too? Are there class action cases that are relevant?

There are some suits by individuals, but we don’t believe that’s where the big money damages—and the real social impact of the litigation—will be.  More important is the pending federal multi-district litigation (MDL), which consolidates nearly 2,000 individual federal lawsuits brought by cities, counties, municipalities, and tribal governments in a single action before Judge Dan Polster in Cleveland, Ohio. Additionally, 48 states have initiated separate litigation, with a lineup of claims and defendants similar to the MDL.

Does this win for Oklahoma mean these other plaintiffs have an easy road ahead?

Not easy, but potentially easier. The Oklahoma case is what we call a bellwether. Like the ram that leads the other sheep this way or that, the bellwether trial doesn’t control the path of future litigation. But it does go first, and it helps to indicate trends.

As a bellwether, the big verdict here is very reassuring to the many states, counties, municipalities, and tribes suing opioid makers, distributors, and retailers, and it is, correspondingly, very disturbing for those who made and sold opioids to the American public.  The verdict suggests that this litigation has legs, and that judges and juries may be willing to pin blame not just on Purdue, the maker of OxyContin, but on others who played an arguably less central role in fueling this public health crisis.

What is striking is how damning Judge Balkman’s factual conclusions about J&J’s conduct are, and how similar they are to the allegations made against other opioid manufacturers in other cases.  All the things he objected to regarding J&J’s marketing practices are things that others, too, allegedly have done.  Some of them are things that multiple companies banded together to do. Plaintiffs’ attorneys should be feeling pretty confident about their chances of persuading other courts that those practices are problematic.

Is Oklahoma free to use the award as it wishes? Will the state share some of the award with the people who died or suffered in the opioid crisis (if the decision is upheld on appeal)?

The damages in this case are intended to fund the Oklahoma’s “nuisance abatement plan.”  That’s the remedy in a public nuisance case: The defendant has to pay to clean up the mess it made. In this case, Oklahoma provided a detailed plan laying out what would be needed to abate the opioid problem in the state. The costs added up to $572 million for the first year, and that’s what the judge awarded—not the $17 billion Oklahoma sought for a multi-year abatement effort.

The plan specifies that the money will be used for opioid use disorder screening, prevention and treatment ($292 million), housing and other services for those in recovery ($32 million), continuing medical education programs ($108 million), a pain management benefit program ($103 million), treatment of neonatal abstinence syndrome ($21 million), and other services.  Individuals won’t be direct recipients of the funds, though they may receive the services funded.

Legally, what happens next?

J&J has vowed to appeal the “flawed” Oklahoma judgment, and we expect that the judgment will be appealed, first to Oklahoma’s intermediate, and then, likely, to its supreme, court.  More immediately, though, attention will turn from Oklahoma to Ohio.  The first bellwether trial in the MDL, involving claims from Ohio’s Cuyahoga and Summit counties, is scheduled to begin on October 21.

Even as they prepare for trial, however, lawyers for both plaintiffs and defendants are also, no doubt, continuing to work toward reaching a broad and encompassing settlement.  When Judge Polster was first assigned the MDL back in January 2018, he made no bones about his desire to do “something meaningful to abate this crisis”—and to do it quickly.  It hasn’t been easy to execute on that, which isn’t surprising given the unprecedented magnitude and complexity of the litigation.

Still, we expect that, sooner or later, the opioid litigation will settle.  Indeed, even as we write, news is breaking that Purdue and the Sacklers may be in the midst of a negotiation whereby Purdue would declare bankruptcy and the Sacklers would contribute a cash payment of roughly $4.5 billion plus relinquish ownership of the company, in return for peace with plaintiffs.

But even forging a settlement involving just those two entities is tricky—and forging a broader settlement will be exponentially harder for a number of reasons.  One is that any truly global agreement needs to pass muster with a range of defendants, some of whom have comparatively shallow pockets, and all of whom sold (or made or distributed) different products, at different times, in different quantities, in different states.  And, on the other side of the table, any settlement agreement needs to get buy-in from both those plaintiffs in the MDL and also state attorneys’ general, who have their own distinct set of priorities and interests relating to their separate lawsuits.  Further, because only a small proportion of eligible cities and counties have joined the MDL to date, any global settlement needs to somehow—equitably but firmly—close the courthouse door on those potential future plaintiffs.  None of this will be easy to accomplish.  But whenever new information reduces uncertainty about how courts would resolve a legal dispute, settlement becomes more likely—and, here, the Oklahoma verdict makes a significant contribution.

 

Nora Freeman Engstrom, Professor of Law and Deane F. Johnson Faculty Scholar, is a nationally-recognized expert in tort law, legal ethics, and complex litigation. Her work explores the day-to-day operation of the tort system—particularly its interaction with alternative compensation mechanisms. Michelle Mello, Professor of Law and Professor of Health Research and Policy (School of Medicine), is a leading empirical health scholar and the author of more than 150 book chapters and articles, including “Drug Companies’ Liability for the Opioid Epidemic,” recently published in the New England Journal of Medicine. 

 

In the April ABA Journal, Bryan Garner devoted his monthly “On Words” column to textualism. I read it with interest because I too have written on the subject. Here’s the salient line from the column: “So the ideal textualist is content-neutral, at least in theory.”

Mark that: in theory. Actual practice is far different. In high-profile cases, cases that broadly shape the law, cases with political and ideological significance, self-proclaimed textualists reach conservative results with uncanny regularity. All judges start with text and make textual arguments, of course, but the arguments almost always lead textualists in the same direction.

The empirical evidence is striking. To see for yourself, go to this Scribes Journal article at 28–37 and this entire Wayne Law Review article. In the first one, I summarized 6 empirical studies—4 involving Justice Scalia’s opinions—and cited 11 other scholarly articles. They show unmistakably that the opinions of textualism’s preeminent advocate had a strong ideological bent. In the second article, I reviewed and coded 96 (!) overrulings by the Michigan Supreme Court between 2000 and 2015. The justices in the majority during almost all those years were also exponents of textualism. And 96.3% of their overrulings were ideologically conservative.

Textualism, in my view, has become the brand name for politically driven judging, and the notion that it is practiced in a neutral, objective way must be punctured.

You can recognize the textualist brand in a number of ways:

• by strenuous parsing in an effort to resolve ambiguity, followed by the assertion that it doesn’t exist;
• by overreliance on highly malleable and often-conflicting canons of construction;
• by a boundless confidence that the “plain language” of a statute compels such and such a result;
• by a general aversion to legislative history and a reluctance to consider values and sensible policy, even in close cases; and,
• above all, by a propensity to reach for dictionaries—those great grab bags—and pluck out convenient definitions. (Never mind that scholars have heaped criticism on the dictionary habit.)

Textualists exaggerate the number of appellate cases in which “close reading” or “fair reading” of the text, by itself, yields a singular, self-evident, or “plain” meaning. And too many textualists have convinced themselves that they are merely doing what the words say, applying the canons, looking at the linguistic cues and clues, and following the law—instead of consciously or unconsciously backing into the textual analysis that supports the outcome they prefer.

In fact, textualism is just as squishy, just as pliable, as any other theory of interpretation. Textualists will deny it, of course, even as they go on their ideological way. Just watch. And count me happy if I’m proved wrong.

Author’s note: This commentary is a somewhat longer version of a letter that I submitted to the ABA Journal in April. The letter was printed (with a few changes) in the July–August issue.

Kai Wiggins is a Policy Analyst at the Arab American Institute

On a fall afternoon nearly 30 years ago at an apartment in Kenosha, Wisconsin, a young man named Todd Mitchell was hanging out with his friends. They were talking about the movie Mississippi Burning, a 1988 thriller set in the midcentury south about the Ku Klux Klan’s targeting of black civil rights activists. Later that evening, after they had moved outside, and with the film’s depictions of racial violence fresh in their minds, Mitchell and his friends noticed a boy walking alone down the other side of the street. “Go get him,” Mitchell said. His friends beat the boy unconscious and stole his shoes. He remained in a coma for days.

The boy’s only offense was his race, and because he was in the wrong place at the wrong time. By all measures, he was the victim of a hate crime.

Mitchell was convicted of aggravated battery for instigating the assault. Under Wisconsin’s hate crime statute, his prison sentence was increased from two years to four because he intentionally selected his victim on account of the victim’s race. After seeking post-conviction relief, Mitchell appealed his conviction and sentence, challenging the statute on First Amendment grounds. The case made its way to the Supreme Court, which decided to step in after similar challenges in other states led to a lower court split over the constitutionality of hate crime penalty enhancement.

On April 21, 1993, the Court issued a unanimous decision in support of Wisconsin, noting the statute’s similarity to antidiscrimination laws, which were deemed constitutional. Furthermore, in the opinion authored by Chief Justice William Rehnquist, the Court reasoned that hate crimes were more likely to incite civil unrest and inflict distinct harms on victims and their communities. Citing his fellow justices and long-dead jurists, Rehnquist affirmed a notion etched into our legal tradition: the more serious the offense, the more severe the penalty.

In 2019, penalty enhancement remains the gold standard for hate crime prevention, with most states authorizing some form of increased sentencing for crimes committed because of protected characteristics like race or ethnicity, religion, sexual orientation, gender, disability, or gender identity. While the range of protections and applicable offenses varies from state to state, the mechanism is more or less consistent. Some states have also authorized sentencing judges to require participation in educational programs or community service, and others require law enforcement to collect hate crime data and receive training on identifying, reporting, and responding to hate crime.

Despite general support for hate crime penalty enhancement within the civil rights community, there is an obvious tension between these provisions and certain fundamental principles of criminal justice reform. After all, aggressive sentencing has contributed to soaring incarceration rates with severe and disproportionate consequences for people of color. To protect targeted or vulnerable communities from hate crime, we seem to have expanded the very system under which many of those communities are subject to unjust treatment.

With this point in mind, we should revisit that street in Kenosha. Unless you were already familiar with the case, you might have assumed that Todd Mitchell was white. He wasn’t, he was black. His victim was white. In the criminal case at the center of the Supreme Court’s decision to uphold hate crime penalty enhancement, the defendant subject to those penalties was a young black man.

This case alone says nothing about the potential discriminatory impact of hate crime penalty enhancement. But it should make us think. Are prosecutors more apt to pursue hate crime penalty enhancement against nonwhite defendants? Are jurors less sympathetic to nonwhite hate crime victims? At the very least, it should have us looking for data. But here’s the problem: no such data exist, at least not in a comprehensive form. While the federal government collects hate crime data from law enforcement agencies across the United States, the data are based on reported incidents, not prosecutions. And while some states like California publish statistics on hate crime prosecutions, demographic data on offenders and victims are not included.

The closest thing we have to prosecution data comes from the federal government. Based on the data collections described above, the FBI publishes annual hate crime statistics that include breakdowns according to the reported race or ethnicity of known offenders. The data suggest that African Americans are more likely than white people to commit hate crime.

A reasonable and well-informed person might suppose, in this case, that the data say less about hate crime in the United States and more about racial disparities within law enforcement and the criminal justice system. They would probably be right. The federal government’s hate crime statistics are inaccurate. First, hate crime victims often do not feel safe reporting incidents because of fear or distrust of law enforcement. Other victims, however, might not face such barriers. Second, even when incidents get reported to law enforcement, they can fall through the cracks. Such breakdowns can result from technical glitches, insufficient training, ignorance, or even disregard for the needs and concerns of victims. According to survey data from the U.S. Department of Justice, fewer than five percent of hate crime victimizations that occur each year are recorded in the federal data. Even high-profile hate crimes, like the murder of Khalid Jabara on August 12, 2016, in Tulsa, Okla., and the murder of Heather Heyer exactly one year later in Charlottesville, Va., were not reflected in federal hate crime statistics.

All of this points to the need for better data collection of not just prosecutions but reported incidents as well. Going the legislative route is one option. Last month, the Oregon state legislature passed a bill that would, among other things, require a state commission to collect data on hate crime prosecutions and publish a report based on its findings. Meanwhile, a bipartisan bill recently introduced in Congress, known as the Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality (NO HATE) Act, would help improve the federal government’s hate crime data collections and promote relevant best practices within state and local law enforcement.

These efforts represent important first steps. However, more must be done to ensure that we do not exacerbate the deep inequities within our criminal justice system through the enforcement of hate crime laws. As noted in a recent report from the Brennan Center for Justice, the traditional approach to hate crime enforcement “could aggravate the mass incarceration problem and, perhaps surprisingly, reinforce existing racial disparities in criminal prosecutions.” By no means is this a criticism of hate crime penalty enhancement, but let it be a reminder about the potential limitations of fighting injustice through unjust systems. If penalty enhancement is to remain the gold standard of hate crime prevention, we should strive to ascertain, if not prevent, the potential for widespread abuse.

Aaron Belkin is director of Take Back the Court and political science professor at San Francisco State University. Belkin appeared on the panel on Supreme Court reform at the ACS 2019 National Convention, where court expansion was one of several reform proposals discussed.

I was honored to participate in a plenary on reforming the Supreme Court at the recent ACS national conference. At the end of the session, I told the audience of nearly 1,000 that they have a unique opportunity to save American democracy. Because time was running out, I was not able to provide much context, so I’m grateful to ACS for giving me a chance to elaborate here, especially in light of Justice Ruth Bader Ginsburg's recent critique of court expansion.

Judicial reform rocketed onto the national agenda in February and March of this year after Pete Buttigieg said that he is open to expanding the Supreme Court. By now, 10 presidential contenders have stated that they are open to expanding the Supreme Court, including Senators Harris, Warren, and Klobuchar. As of late, however, the discussion has stalled somewhat as a result of a chicken-egg dynamic. None of the 10 candidates who have said that they are open to expanding the Court are willing to clearly and aggressively advocate for expansion, in part because polling on the issue is lukewarm. (Among Democrats, approximately one-third support expansion, one-third are unsure, and one-third oppose). As long as the candidates decline to explain why expansion is necessary, however, the polling will remain lukewarm. So, the conversation is stuck, and judicial reform has taken a back seat to other issues.

The unique opportunity for legal experts is to help the candidates transcend this chicken-egg dynamic by urging them to endorse court expansion whole-heartedly, and by explaining why restoring democracy requires expanding the Supreme Court. The candidates need to hear from legal experts, and they need to hear from them soon!

Legal experts should make three points to the candidates:

1. As the Roberts majority made clear in its recent decisions on gerrymandering and border wall funding, the current Supreme Court will not allow Congress to restore democracy;
2. While every judicial reform option carries risk, court expansion is the least risky of available options;
3. Despite the desperate need to reform the Supreme Court so as to be able to take democracy back, none of the other court reform options currently under consideration will work. Court expansion is the only judicial reform option that has a chance of allowing Congress to restore democracy.

Let's take each point in turn.

1. Whether one believes that democracy is on life support or that it has already died, many progressives agree that we are facing a “democracy emergency.” The story of our democracy emergency is complex, but the short bottom line is that when millions of black and brown people cannot vote, that is not democracy. When corporations and billionaires can purchase policy, that is not democracy. When millions of votes are wasted due to hyper-partisan gerrymandering, that is not democracy. And when Democrats are prevented from governing, even when they win elections, that is not democracy. The GOP has rigged the system via gerrymandering, voter suppression, dark money, judicial theft, unprecedented obstructionism, and a culture of lying, and winning at the ballot box will not bring democracy back.The *only* way to restore democracy is to retake control of the White House and Senate in 2020 and then pass an aggressive version of H.R.1. And the only way to do that is to kill the filibuster and expand the Supreme Court. If Congress passes an aggressive version of H.R.1 but fails to expand the Court, the Roberts majority will not allow the un-rigging of the system. So, the only path back to democracy requires Congress to expand the Court.
2. There is no question that the GOP will respond to court expansion by packing the court at its next opportunity. But that would only get us back to where we are now, and the risk of escalating responses from Republicans is overstated. The GOP has already broken norms to steal the Court. Concerns about its efforts to do so again in the future shouldn’t prevent Congress from trying to fix the problem in the here and now. Expansion is the only way to restore the Court, and if the GOP steals it again, the country won't be any worse off than today. Cycling between Republicans stealing the Court and Democrats restoring it is far better than unilateral surrender.
   
   But wait. What if Democrats somehow manage to secure a SCOTUS majority via normal rotation? Wouldn’t the GOP respect that? Of course not. If Democrats secure a Court majority through normal rotation, the GOP will respond by packing the Court at its first opportunity. (Isn’t that basically what happened in 2016?)  But here’s the advantage of court expansion. If Congress expands the Court and restores democracy by banning dark money, voter suppression, and partisan gerrymandering and providing automatic voter registration as well as statehood to DC and an option for Puerto Rico to choose statehood, among other reforms, the Brennan Center estimates that 50 million voters would be added to the rolls. These voters would protect against continued efforts to rig democracy. Court expansion is the only reform that enables the un-rigging of the system and the restoration of democracy.
3. Other judicial reform options such as term limits may look good on paper, but those options cannot work. The fatal flaw in other reform options is that between the enactment of a statute mandating reform and the point at which the reform started to have a moderating impact on the Court, the Roberts majority would strike down the statute. Court expansion, by contrast, is less vulnerable to challenge. While justices acting in bad faith can always make up reasons to strike down statutes they dislike, most scholars and experts agree that the constitutionality of a statute expanding the Court is not in serious question, and that an expansion statute is more constitutionally plausible than alternative reforms.
   
   As well, unlike other court reform alternatives, the new status quo of an expanded court would be in place right away. The process of new appointments can take place nearly simultaneously with the passage of a court expansion statute, minimizing the opportunities for legal challenge as there are no distant steps or actions to take. The same president and Senate that pass the law could nearly immediately confirm justices to the new seats. Accordingly, the new appointees would be presumptively on the Court constitutionally, and unwinding the appointments would be far more difficult than challenging appointments, or vacancies in the case of term limits, yet to be made.
   
   The window to make this case to the candidates is closing quickly, because the pivot from the primary season to the general election could be a moment when the Democratic nominee becomes less interested in progressive ideas. Legal experts need to make the case for court expansion now, and they need to urge presidential candidates to do what it takes to restore democracy.