Should Democrats Pack the Court? The Cases For and Against
The United States Supreme Court. Photo by Kjetil Ree.
Following the September passing of Justice Ruth Bader Ginsburg, President Donald J. Trump nominated Amy Coney Barrett, then a judge on the U.S. Court of Appeals for the Seventh Circuit, to fill the vacancy on the Supreme Court. Merely eight days before the 2020 presidential election, the Republican Senate majority confirmed Barrett, solidifying the conservative leaning of the Court in a 6-3 supermajority. Throughout Trump’s four-year presidency, he nominated a total of three new justices to the Supreme Court. When Justice Scalia passed away on February 13, 2016, nine months before the November 2016 elections, a Republican-controlled Senate led by Mitch McConnell refused to hold confirmation hearings of Obama nominee Merrick Garland, delaying the process for nearly 11 months until Trump nominated Neil Gorsuch in January 2017 to fill his seat. In 2018, Brett Kavanaugh’s ascent to the Supreme Court after Justice Kennedy’s retirement further tilted the Court toward a conservative majority. Democrats are now faced with two options: pack the court or accept an unshakeable conservative stronghold for what may amount to decades.
Preservation of Judicial Legitimacy: The Perils of Court Packing Call for Alternative Reform Plans
Virginia Lo
“If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to,” Justice Ruth Bader Ginsburg expressed in a July 2019 interview with NPR.
With the recent confirmation of Judge Barrett just eight days before the 2020 presidential election and vivid memory of the failed nomination of Judge Merrick Garland to the Supreme Court in 2016, many Democrats have revived the idea of court packing. However, packing the Supreme Court is an extremely dangerous, short-sighted step forward. Justice Ginsburg’s unequivocal opposition and Biden’s plan to appoint a bipartisan commission to explore other judicial reforms should serve as warnings. More long-term, stabilizing solutions to curb the fallout of a 6-3 supermajority court include supporting rights-protective legislation, removing lifetime appointments and allowing Supreme Court justices to return to their previous posts after their terms, and adopting a Code of Conduct that enforces recusals for conflicts of interests.
The historic confirmation revealed the Republicans’ hypocrisy, partisanship, and lack of respect for the Court’s legitimacy. The repeated political theatrical acts from the right, however, should not serve as a green light to pack the Court. By increasing the number of justices on the Court, Democrats risk setting a vicious precedent that would mark the beginning of a never-ending spiral of partisan court packing by the majority party and the end of Americans’ trust and respect for the highest court of the land. Expanding the number of seats would quickly escalate a tense situation and further delegitimize the Supreme Court—a supposedly nonpolitical instrument of democracy independent of policy concerns; this risks resulting in a continuous cycle of partisan struggles further heightened by the breakdown of a key government branch to ensure checks and balances. More broadly, to redirect the country’s trajectory away from democratic backsliding evident in the past four years and to restore diplomatic relations with major allies, Democrats should be extremely cautious against undertaking any retaliatory measures that would undermine public confidence in the federal government and the country’s standing as a liberal hegemony.
Indeed, Americans do not need to look too far back in history to see the ill-fated failure of and bipartisan opposition to court packing. When President Franklin D. Roosevelt sought to add new justices to the Court through the Judicial Procedures Reform Bill of 1937, as a political ploy to gain approval for his New Deal programs, a disaster ensued. Both Democrats, including then Vice President John Garner, and Republicans alike opposed FDR’s attempt, which they viewed as a way to dismantle an independent judiciary and render party preferences, rather than the rule of law, the central force steering government operations. The Judiciary Committee sent a report to the Senate, noting that “it is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government.” While Article 3 of the Constitution does not set a fixed number of Supreme Court justices, following the misstep of FDR will significantly compromise the Court’s power of judicial oversight and legitimacy in making legally binding decisions. It is clear that the goal of adding new seats is to preserve Democratic legislation like Roe v. Wade and the Affordable Care Act—a noble undertaking to preserve civil rights but embedded is an inherently political motivation. While court packing plans, such as this one proposed by some current Democrats seem benign, they imperil the Court’s independence and legitimacy and would lead Republicans mount a retaliation, bringing accelerating political divisions to the judicial branch.
Instead of increasing the number of justices, Democrats could turn to the legislature to restore relative stability and minimize social repercussions. The solidification of our new conservative Court prompted widespread panic from abortion right activists, among other issues. While Justice Barrett seeked to distinguish herself from her textualist mentor, Justice Scalia, who favored overturning Roe v. Wade in his concurrence in Webster v. Reproductive Health Services (1989), her membership at Notre Dame’s University Faculty for Life, an anti-choice group, seems to suggest otherwise. Realizing the potential consequences of Barrett’s conservative Court opinions, organizations like Planned Parenthood began exploring legislative avenues to counter erosion of women’s reproductive rights. In a podcast episode with the New York Times, Planned Parenthood President Alexis McGill Johnson advocated for the Women’s Health Protection Act (WHPA), which would offer federal protection to reduce bans and restrictions, and heightened efforts to repeal the Hyde Amendment, a legislative provision barring federal funding for abortion, through mobilizing efforts to elect Democrats to state legislatures. With varying statutes regulating abortion in different states, however, safeguarding essential rights in the face of a potential overturn of Roe requires Democrats secure a Senate majority to create favorable grounds for implementing such sweeping policies.
Removing lifetime appointments and setting judicial term limits would offer Democrats another route to counter the right’s reversal of important legislation such as the Affordable Care Act (which the Supreme Court will hear in California v. Texas, scheduled for this month). The current term limits proposal, which has received support from judges and constitutional experts, is incorporated into a recent bill sponsored by Representative Khanna Ro (D-CA-17). It sets justices’ terms to eighteen years and staggers these terms so that a new justice would retire every two years, meaning that each president would nominate two new justices per presidential term. Supreme Court justices would then be allowed to return to their old court posts upon completion of their terms. Unlike court packing, setting term limits directly addresses the dysfunctional issues that exacerbate the current crisis, namely, the degree of influence given to new justices and the direct link between presidents’ political goals and their nominees’ ability to shape decisions for decades. By targeting the source of the current politicization of the Court, term limits would limit future partisan maneuvers without engendering a bitter political fight between the two parties.
Across federal courts, The Code of Conduct for United States Judges provides guidance to federal judges on their performance of official duties. Canon 3 of the Code specifically governs the manner in which judges should discharge their responsibilities impartially. While the Code of Conduct includes ethical canons applicable to federal judges, no existing set of rules pertain to Supreme Court justices. Although Chief Justice Roberts stated in his 2011 year-end report that justices do consult the Code, he also implied that their decisions as to whether they recuse themselves in cases where there are conflicts of interests are not subject to review. The current 6-3 makeup of the Court amid intensified political tensions raises serious questions of whether the Supreme Court justices would be able to fairly adjudicate cases concerning potential election fraud, corruption of government officials, severability of the individual mandate provision in the Affordable Care Act. Right now, Congress needs to first ensure that Justice Barrett, who worked for the Republicans on Bush v. Gore, would not listen in on cases related to any post-election disputes. In response to Senator Coons’ (D-DE) question regarding recusals, Barrett explained that she “would very seriously undertake that process” and “would consider every relevant factor,” but did not explicitly express that she would recuse herself in post-election dispute cases. Adherence to the Code would ensure that justices strictly follow proper recusal rules and thereby uphold the nonpartisan legitimacy of the Court.
Proponents of court packing usually focus on the difficulty of implementing less extreme solutions, which may require more protracted legislative procedures such as a constitutional amendment. Of course, options such as legislative remedies, term limits, and Code of Conduct cannot reverse the damage created in the Trump era overnight. Making effective, long-lasting changes in a democracy has never been easy—just look at the struggles prior to landmark Supreme Court cases like Brown v. Board and Roe v. Wade. While Democrats rightfully fret about the daunting consequences of a 6-3 supermajority on the Supreme Court, it is also important to examine how the Republicans successfully built a conservative legal movement that cultivated a formidable generation of originalists. Conservative think tanks such as the Heritage Foundation and the Cato Institute, founded in 1973 and 1977 respectively, served as some of the key mechanisms through which conservative policy points and debates influence political discourse and public attitudes. Notably, the 42-58 failed confirmation of the Reagan nominee, Robert Bork, to the Supreme Court in 1987 further fueled the conservative movement to build an insurmountable momentum in re-dominating the judiciary through sustained efforts.
Rather than expanding the Court, which would only ensure potential stability for the next few years, Democrats should look at the Republican playbook, rule out all escalating options, and consider executing the aforementioned alternatives to safeguard the sanctity of our independent judiciary for generations. Altering the rules with a political motivation in response to the other side’s affronts would be antithetical to our nation’s rules-based order, and risks sending a signal to the Republican party that the Democrats intend to participate in the tit-for-tat political game they themselves condemned. The best way for Democrats to signal to the Republicans and countries around the world that the United States does not condone political tamperings on our highest court is to simply be the example: respond to assaults through non-escalating strategies that align with our country’s democratic values.
It is clear that Democrats need to reform the Supreme Court. However, the Biden administration must not consider undertaking an option like court packing, which would escalate the current situation and offer an invitation to further partisan manipulation of the judiciary.
Virginia Lo is a staff writer at CPR and a sophomore at Columbia College studying Political Science.
Packing Need not be Partisan: Why Two New Justices Can Restore our Judicial Legitimacy
Brian Perlstein
In Federalist No. 78, Alexander Hamilton wrote that the judiciary would be the “least dangerous” of our three branches, as it had “neither force nor will, but merely judgment.” In other words, the authority of the Court depends not on any specific power, but on the other branches choosing to respect its legitimacy and heed its judgements. Fortunately, because of the apolitical nature of the judiciary, opposing parties have been willing to recognize its authority and follow its opinions, even when the gavel came down on the opposite side they had hoped for.
But today, with each partisan battle chipping away at the legitimacy of the Court, we must remember that our system only works when all sides agree that our process of adjudication is fair. If a future president or Congress considered our Court illegitimate, they could choose to disregard its opinions, defining constitutionality for themselves and throwing our whole system of government into chaos. As such, politicians must be careful in their treatment of the Court, as any politically-motivated move with the judiciary will weaken the body’s legitimacy, stripping it of its lifeblood and rendering its opinions, rather than binding law, as mere judgement. For some, this means that if Democrats choose to restructure our highest bench, they must, for the sake of our nation, choose not to “pack the Court.” However, Republican Court politics have put Democrats in the situation where adding new justices would, rather than serve any political motivations, not only ensure the sanctity of our highest Court, but also protect it from future partisan assaults.
Of course, any claim that court packing could restore judicial legitimacy rather than weaken it may initially seem outlandish. Indeed, any court packing plan motivated by politics and not the preservation of norms and procedure should rightfully be condemned as antithetical to our nation’s values. However, the Republican’s flouting of norms and brazen hypocrisy have all but forced the Democrats to firmly condemn and counter these partisan attacks on the Court. When Senate Republicans argued under President Obama that a Supreme Court vacancy should not be filled in an election year, most Democrats understood that such a rule lacked historical precedent and looked to be a thinly-veiled excuse for political Court tampering. Republican leadership, however, vehemently denied such claims, and Senator Lindsey Graham—now infamously—said that “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination."
Unfortunately for Republicans, their bluff was called with liberal leader Justice Ruth Bader Ginsburg’s death coming just 42 days before Election Day. Instead of waiting for its results and adhering to their words from four years earlier, Republicans happily voted to confirm Justice Amy Coney Barrett just eight days before the election. With such a blatant display of hypocrisy, Democrats are near universal in believing that Court reform should be pursued if they take both the presidency and Congress, although few have expressly advocated for court packing. While some of their suggested reforms, such as judicial term limits, may hold merit, they do not directly address the Republican hypocrisy that gave us our 6-3 conservative supermajority on the Court. If Democrats truly seek to confront this ill-gotten imbalance, they must tackle it head-on.
The math is quite simple: Democrats should add two new seats to the Court, one to counteract the 2016 Democrat loss—namely, Scalia’s pivotal conservative seat—and the other to counteract the 2020 Republican gain of Ginsburg’s liberal seat. Recently, however, Democrats have been throwing around all sorts of numbers for Supreme Court justices, with Pete Buttigieg advocating for six new seats, and Congressman-elect Mondaire Jones advocating for four. But all these reform suggestions go beyond the wrong Democrats should work to rectify. The problem is not that there is a conservative Supreme Court, but rather that this conservative Supreme Court was created unscrupulously. Although it may be tempting, Democrats must not use Court reform as a tool to bolster their political might. Instead, they must remember that the goal is to eliminate the effects of Republican hypocrisy that took a seat from Democrats and gave it to Republicans. The reestablishment of norms, and not the desires of politics, dictates why court packing should be a key tenet of the Democratic agenda.
But how can it be that Democratic court packing would not weaken the legitimacy of the Supreme Court? After all, did Democrats not vote down FDR’s 1937 court packing proposal because it sought to disregard the importance of an independent judiciary? However, not all proposals to alter the number of Supreme Court justices should be viewed the same way. FDR’s motivations were blatantly political, as he tried to add liberal justices who would rule favorably on New Deal legislation. In contrast, adding two new justices today would not be about safeguarding any particular legislative agenda, but correcting past Republican malfeasance. Even with this court packing plan, conservatives would still hold a 6-5 majority on the Court. But again, the goal for Democrats is not political, so the resulting makeup of the Court should not be a factor in their decision making.
Certainly, it won’t be easy for Democrats to fend off claims of political chicanery that Republicans will inevitably allege. The key for Democrats, however, is to disentangle the association in people’s heads between court packing and dirty politics. If the problem most people see with court packing is undeservedly giving one side undue judicial influence, then should not the Republican Court maneuverings of 2016 and 2020 be viewed in just the same light? After all, if the effect of Republican action was taking a seat to be filled by an Obama appointee and giving it to a Trump appointee, then there is no functional difference between that and court packing. Joe Biden summarized this best when he explained that the only court packing currently happening is that “with the Republicans.” But if Democrats acknowledge that Republicans have weakened the Court’s legitimacy by using our judiciary as a political tool, is it not incumbent upon Democrats to restore that legitimacy? If they choose to do nothing in response to Republican misbehavior, then they legitimize the idea that one side should be able to politically manipulate the Court without consequence, which would embolden future efforts to influence the judiciary in whatever way possible. In order to make clear that playing political games with the Court cannot be tolerated, Democrats must squash the poisoned fruits that Republicans have reaped from such an unfair game. While at the ground level this could be called “court packing,” its broader function would be to wipe out the politics which has tilted our Court, bringing it back to its critical role as an independent, legitimate, and impartial body.
However, this plan can only work if it is not hijacked by Democrats who support court packing for explicitly political purposes. These Democrats contend that adding new justices is necessary to keep the new Court from upending liberal progress with opinions that could strike down the Affordable Care Act and overturn Roe v. Wade. But while the concerns that these Democrats have about the current conservative Court are no doubt warranted, altering the Court to safeguard these protections would only be counterproductive. Doing so only endorses the idea that politics is not off-limits when it comes to shaping the Court, which will compel Republicans to either play political catch-up with the Democrats, or, in the most extreme case, simply ignore Court decisions altogether. While it may sound far-fetched, some Democrats have already advocated for ignoring future rulings from the current Court. Likewise, if Republicans considered a future Democrat-packed Court illegitimate, then they wouldn’t feel compelled to adhere to its words. As such, an expressly political Democratic court packing would, far from protecting our constitutional freedoms, instead throw all of them into jeopardy.
The sanctity of our Court is paramount, and to ensure that it is not in any way weakened, it might seem best to simply play hands-off with the Court. But the legitimacy of our Court has already been weakened, and Democratic inaction would only worsen it. Democrats cannot let the Republicans keep a conservative supermajority that was obtained through unethical and overtly political means. Moreover, they cannot accept that any court packing plan is inherently dangerous and political, but instead explain why adding two new justices would help maintain the Court’s apolitical function. Some Democrats will seek to more extensively restructure our nation’s highest court, but leading voices need to argue against such political manipulation as a solution. If Democrats wish to strengthen liberal policies and protections, let it be done through the ballot box, and not by judicial decree. The Court has often been the source of great progressive change, but its ability to effect such change rests on both sides agreeing that our Court is fair. Two new, Democratic-appointed justices, far from making our highest bench less fair, would show our nation’s willingness to fight off political attacks on the Court, and would enshrine the doctrine of judicial legitimacy at a time when it is severely under threat.
Brian Perlstein is a staff writer at CPR and a sophomore at Columbia College studying History.