Originally published on RealClearPolicy.com

A spate of 2022 Supreme Court rulings at odds with national sentiment has created an opportunity for the Democratic Party to avoid the typical midterm election drubbing.

Incumbent administrations rarely avoid midterm Congressional losses. The only exceptions since 1978 were George W. Bush in 2002 and Clinton in 1998. Both featured a president with some bipartisan success and a midterm campaign focused on grievance – anger following 9-11 or the perceived Congressional Republican overreach with the Clinton impeachment.

President Biden does have notable bipartisan legislative successes including the chips, Covid relief, gun control and infrastructure legislation. The Democrats should combine that characteristic with a grievance informed by the Kansas abortion vote and the recent bounce in Party prospects from the Supreme Court’s Dobbs abortion ruling frightening women and angering a majority of women and independents.

The grievance central to the midterm elections should focus on a Democratic Party proposal to reform the “extremist” Supreme Court responsible for Dobbs.

A Tarnished Court Advantaging Democrats

The Kansas abortion vote dramatized unpopular rulings now associated with the Supreme Court. Support for the Court has plunged over the past year among Democrats, but importantly also among independents. Confidence in the Court by independents has fallen to 25%, the lowest level ever recorded. The key reason is that more than half (55%) of these swing voters in the latest NPR/Marist survey believe the Court’s rulings are grounded in politics rather than the law, exemplified by Dobbs. Independents support abortion rights and a majority are critical of the Dobbs ruling. Moreover, their opposition is intense with nearly half saying they would “definitely vote for” a Congressional candidate favoring restoration of Roe. A majority also fear the Court will go further and revisit past rulings, stripping the right to contraception or same-sex marriage.

These sentiments have revived Democratic congressional midterm prospects.

Since the Dobbs ruling in April, the generic Congressional party preference survey has swung by ten points to now favor Democrats 48% – 41% – including majorities of independents, seniors and a yawning (55% – 32%) margin among youths.  Equally important, Democrats have become energized in the wake of Dobbs, opening a huge enthusiasm gap (78% – 54%) with Republicans. That energy is reflected in the turnout for the Kansas vote, nearly double previous primary elections. The generic preference margin favoring Democrats at the moment is comparable to the margins enjoyed by Republicans in 2014 and Democrats preceding the 2018 midterms.

The Democrats Midterm Pledge: Reform the Supreme Court

A Democratic message centered on the Supreme Court can drive midterm turnout: In exchange for voters delivering a Democratic House and two new senators, they should pledge to expand the Court as urged by the Reagan Solicitor General Charles Fried and create term limits for Justices as suggested by Republican conservative Steven Calabresi.

The logic of these reforms rests with the anomalist characteristics of the Republican Court majority. First, their judgement is flawed (including abandoning the separation of church and state), which violates the quality central to court legitimacy emphasized by Alexander Hamilton in Federalist 78.

Second, they comprise the first partisan Supreme Court in American history. How partisan?  Well, three of the future justices were among the most trusted party shills sent by Republicans to aid George W. Bush in the 2000 Florida recount. Drawn on an Etch-A-Sketch constitution, their rulings frequently reflect Republican Party ideology, some 75% more conservative than the nation.

Third, five of the Court’s six Republicans, excepting only Chief Justice Roberts, were confirmed by Senators who represented a minority of the nation’s population. (Moreover, five of the six were appointed by George W. Bush and Donald Trump, candidates elevated by the Electoral College over winners of the national popular vote.)

Resurrecting a Supreme Court as Envisioned by the Framers

The Republican majority confounds the intent of the Constitution’s framers. James Madison would deplore the spectacle of partisans abandoning legal rigor to conjure rulings reflecting personal whim reliant on invented doctrines.

Restoring the framers’ vision has two components. First, upgrade the Court’s judgment by expanding the number of justices, a common practice. It has occurred seven times at the Supreme Court and most recently by Republican legislatures expanding the Arizona (2016) and Georgia (2017) Supreme Courts. Support for Court expansion is at a record high, favored now by a majority (52%) of Americans. Second, establish term limits for Justices, a common practice worldwide and on 49 U.S. state supreme courts.

These upgrades can be accomplished in a constitutionally consistent fashion by a simple majority vote of Senators. And adding at least two new Democratic senators in November would eliminate the present filibuster barrier. True, Republican tit-for-tat Court expansion is possible some years in the future. But its success hinges on the caliber of the new Court rulings in the interim.

Above all, the pledge and proposed reforms would create a practical pathway to restore abortion rights and redress other anomalous Republican rulings. If embraced at the ballot box in the midterms, the reforms would be vouchsafed by the ultimate authority in a democracy, voter approval.