The Deradicalization of Supreme Court Reform

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For most of the last 80 years, court-packing was a historical footnote for high-school students who learned about the New Deal era. The idea that the Supreme Court, still clinging to the glow of its Warren court years, would endure any similar threats to its composition was fanciful at best. Then came the 2016 election, and the presidency of Donald Trump, and three staunchly conservative jurists who will hand down rulings for at least the next three decades. For some liberals, who are now facing an indefinite future in the constitutional wilderness, court-packing seems not only thinkable but urgent.

This sentiment has spread remarkably quickly through the ranks of the Democratic Party’s elite. Roughly half of the Democratic presidential nominees for 2020 signaled that they might be open to the prospect of it. Joe Biden, the eventual nominee, went from staunch opposition to, at best, substantially less staunch opposition over the course of the year. As GOP senators performed a Supreme Court confirmation speed-run with Amy Coney Barrett over the past few weeks, even the most moderate and even-tempered of their Democratic colleagues began to contemplate the prospect of court-packing if Biden wins next month.

As Senator Chris Coons, nobody’s idea of a radical firebrand, told Jake Tapper on a recent edition of CNN’s State of the Union, “Like Joe Biden, I’m not a fan of expanding the court, but we have a few weeks here to see whether there are four Republicans who will step back from this precipice.” After that, Coons suggested, all bets were off, and Biden “will have to look at what the right steps are to rebalance our federal judiciary.” Asked whether he was referring to adding seats to the Supreme Court, Coons said, “Yes.”  

Angus King, Maine’s self-styled independent senator, sounded a similarly regretful refrain regarding the place to which Trump had dragged the Supreme Court: “I don’t want to have to change the number,” he said, “I don’t want to have to do that.” If anything, however, King has laced his recent comments on the matter with considerably more menace: “If all of this rule-breaking is taking place, what does the majority expect? What do they expect? They expect that they’re gonna be able to break the rules with impunity and when the shoe, maybe, is on the other foot, nothing is going to happen?” It mirrors a phrase that liberal proponents of court-packing have memefied on social media into a warning for conservatives: “Fuck around and find out.”

Assuming that Biden wins in November and Democrats retake the Senate, however, the path to court-packing is far from guaranteed. While there are relatively few opinion polls on the subject, the most recent ones still show overwhelming public opposition to the idea. Biden himself appears to be more interested in a bipartisan commission on judicial reform at the moment, which seems more likely to defuse support for court-packing than bolster it in the public square. And there is nothing stopping the Supreme Court from waiting to overturn Roe v. Wade or gutting the federal government’s regulatory powers until after Democrats lose their Senate majority and, with it, the ability to respond.

It would be foolishly premature to say that Democrats should never, ever consider court-packing, no matter what rulings the Supreme Court’s conservative supermajority would issue. But it is also worth thinking through the implications of unilaterally expanding the courts, the goals behind such a move, and the potential consequences that could ensue. Congress has other tools to constrain a rogue Supreme Court that might be worth exploring first.

Some of the arguments in favor of court-packing are tactical. Lawfare’s Quinta Jurecic and Susan Hennessey recently argued that a Democratic push for court-packing “paves the way, under a Biden administration, for deeper structural reforms that offer more enduring mechanisms to reinforce the judiciary’s legitimacy.” Some are less interested in bringing Republicans to the table and more interested in retaliating against them. “Under Republicans’ current reasoning, if Democrats take power in November, they will have every right—perhaps even a duty—to add seats to the Supreme Court,” wrote Slate’s Mark Joseph Stern.

Other arguments for court-packing are ideological. Ian Millhiser, Vox’s legal correspondent and self-described “Supreme Court hater,” views the high court as a long-standing obstacle to progressive politics. Indeed, a Supreme Court where conservatives hold a 6–3 majority is far less likely to allow future Democratic policy goals, such as the Green New Deal or Medicare for All, to survive legal challenges. The lengthy and ongoing right-wing campaign against the Affordable Care Act is a testament to conservatives’ willingness to use litigation to do what they can’t achieve through legislation.

While adding more justices is an extraordinary step by any measure, some have argued that the court’s extraordinary approach to democracy itself justifies it. One of the most persuasive arguments for court-packing came in response to the Roberts court’s antipathy toward voting rights. “Republicans appear committed to an agenda of dispossession and disenfranchisement, entrenching minoritarian rule without the consent of the electorate,” The Atlantic’s Adam Serwer wrote earlier this month. “Their appointees to the high court are bound to a legal ideology that would accept all but the most obvious of Jim Crow–era voting restrictions.”

I am still deeply skeptical about court-packing as a solution to anything, let alone the judicial wars. Adding four more justices to the court, for one, is not a durable answer to any problem. Unless the Republicans never again simultaneously hold the White House and both houses of Congress—a bet I would not personally take—they will simply expand the court even further to restore an ultraconservative majority. Such a majority would be unlikely to show any restraint when imposing its constitutional vision upon the nation. Why would it bother, after all, when it knows the clock is ticking until the Democrats add yet another set of justices to join them?

Millhiser and others have argued, for example, that the mere threat of court-packing will serve as a deterrent against adverse Supreme Court rulings. Those who articulate this view often cite Franklin D. Roosevelt’s battle with the conservative Supreme Court justices of the 1930s over New Deal legislation, which culminated in the semi-mythical “switch in time that saved nine” and a majority that would uphold his agenda. If this is the case, then calls for court-packing are probably a mistake when six conservative justices could hear election-related disputes next month. They may silently conclude that the best way to preserve the court’s legitimacy and influence is simply not to let Democrats win cases that could decide the election.

As I’ve argued before, to little avail, the problem here isn’t strictly the Supreme Court itself but also the irredeemably partisan process by which hyper-ideological justices are now placed on the high court. I won’t bother tallying who started the judicial wars or scored more points in them. The end result is clear: a system in which presidents and senators openly try to tilt the courts in their favor, where sitting justices time their departures for ideological reasons, and where an unexpected death or retirement leads to existential partisan strife. This is not how similar courts operate in Canada, Germany, Sweden, or any other functioning liberal democracy. It is a uniquely American problem.

I doubt the country will rally around a constitutional amendment to address these flaws anytime soon. Nor do I expect that Democrats would simply let bygones be bygones after the most corrupt and authoritarian president in American history installed one-third of the Supreme Court. But there are less drastic options that might work. In August, Christopher J. Sprigman described how Congress could use its constitutional authority to narrow and even remove the Supreme Court’s jurisdiction in certain matters. Others have worked out a possible way for lawmakers to do something that polling suggests the public would gladly embraceenacting term limits on Supreme Court justices, which could be achieved without running afoul of the Constitution’s promise of life tenure and the ideal of judicial independence.

A more immediate option for Democrats might also be to focus on the lower courts instead of the highest one. The Judicial Conference of the United States, which makes policy for the federal courts, proposed last year that Congress add five more seats to the Ninth Circuit Court of Appeals and more than 70 new district-court judgeships. It made its recommendation out of concern for judicial overwork, not for partisan reasons. As The New York Times’ Jamelle Bouie noted last month, it would nonetheless serve as a good starting point to dilute Trump and McConnell’s impact on the federal courts. Splitting the Ninth Circuit is also still something of a Gordian knot for judicial reform, but lawmakers could also take another stab at the issue to create even more appellate court seats.

Ultimately, what matters is not merely the means by which a renegade Supreme Court is constrained but whether the public can be led to an agreement that such constraints, however radical, are necessary. That the desire for court-packing seems to be growing in the hearts of more moderate Democrats doesn’t necessarily portend a future in which the Supreme Court becomes a 13-member body. What it does suggest, however, is that there is a favorable environment to build a consensus around court reform, and perhaps more importantly, ample reason for the nine members of the Supreme Court to tread lightly, so as to not spur public passions against their institution. After all, while court-packing may not poll well now, it’s not likely to start polling worse anytime soon.

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