Court-Packing is Not a Good Solution

“Porch of Supreme Court Building” by Venus Fomby is licensed under CCO

This presidential election’s October surprise came in September this year with the death of progressive Justice Ruth Bader Ginsburg. The implications of her death are massive for multiple reasons. First, the confirmation of Amy Coney Barrett shifts the ideological balance of the Supreme Court from a 5-4 conservative majority to a 6-3 majority. This solidifies the Court’s conservative wing. Second, it presents a break from a precedent created by Senate Majority Leader Mitch McConnell four years ago to stop President Obama’s nominee, Merrick Garland, from joining the Supreme Court. McConnell’s hypocrisy has outraged Democrats. The idea of court-packing, adding justices to the Supreme Court to balance it ideologically, has gone from a fringe idea of progressive scholars into the mainstream of the Democratic Party. 

While outrage is justified, there are major factors that must be addressed before Democrats move forward with court-packing if they were to gain control of the Presidency and the Senate. First, Democrats must consider the precedent court-packing would set and retaliation that would inevitably result when Republicans come into power. Second, the Supreme Court has moderated itself in the past and could again. Democrats should only focus on expanding the size of the Supreme Court as a last resort. It would politicize the judicial branch and undermine its legitimacy. Instead, Democrats, Republicans, and judges should work together to de-escalate the growing partisan fights surrounding the Federal Judiciary. 

The framers of the Constitution believed that an independent judiciary was necessary to protect the rights of the minority and safeguard a non-partisan and non-discriminatory interpretation of the law. The job of a judge is to give unbiased consideration to those appearing before them, not further a political agenda. Chief Justice Roberts stressed this point in a 2018 statement defending judicial independence after President Trump attacked an “Obama Judge.” In his statement, Roberts said that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Roberts’ defense of the judiciary is important for maintaining its independence, but the depoliticization of the judiciary is not only the responsibility of its judges. The Executive and Legislative branches need to return to the once bipartisan tradition of respecting and confirming the opposing party’s nominees. 

Authors Steven Levitsky and Daniel Ziblat of the book How Democracies Die stress that the United States is built upon certain “democratic norms.” By this, the authors mean that there are unwritten rules and precedents established and followed by both parties. One of these norms is forbearance. Forbearance means not using the full power given to a party even if it is within the law for them to do so. Since 1869, there have been nine seats on the Supreme Court. The Constitution does not specify a particular number of seats, and if one party wanted to expand or contract the size of the Court, they would only have to pass a law to do so. However, this would represent a breakdown in forbearance. Democrats may have a few years with a friendly Supreme Court, but when Republicans eventually came back into power, they would use this newly formed precedent to pack the Court more, and the breakdown would politicize the Court farther and quickly devolve into a partisan battle for control to add seats. It would spiral out of control, and the breakdown would only hurt the legitimacy of the courts and further polarize the country. 

Mitch McConnell’s refusal to hold hearings for Merrick Garland was a breakdown of forbearance in the Senate. McConnell’s unwillingness to confirm any of President Obama’s lower court picks after Republicans took control of the Senate in 2014 was also a break. However, Democrats are also guilty of breaking down forbearance when it comes to judicial nominees. Democrats were the first to refuse confirmation of a Supreme Court Justice when Reagan picked Robert Bork. The 1987 confirmation battle ended with a Conservative scholar rejected because of his ideological views. It also made many Republicans bitter and normalized that “ideological differences” could be used as a reason to vote against a judge. Democrats created a precedent when they used the 60 member threshold necessary to confirm a judge to block George W. Bush’s lower court nominees. Then, when Democrats took back control of the Senate and the presidency, they destroyed the Senate’s precedent of a 60 member threshold for confirmation and moved to a simple majority of 51 to force their nominees through. 

This may seem like no big deal, but it leads to fewer compromise appointments. Compromise appointments allowed independent-minded judges to be confirmed with majority support of the Senate. Now, Democrats are outraged over the Republican break of precedent, but Democrats are just as guilty of politicizing the judiciary. The point? Both parties need to move away from the politicization of the courts and back toward the bipartisan tradition of respecting a president’s power to appoint judicial nominees. Respecting nominees will serve to strengthen the country’s institutions and deescalate polarization. Both parties should work to emphasize cooperation when it comes to the judiciary. 

A former clerk of Justice Antonin Scalia, a staunch originalist, Amy Coney Barrett is seen as his ideological heir. Barrett will most likely solidify the conservative majority of the Supreme Court. However, Democrats need to understand that even if they oppose Barrett on ideological grounds, Barrett is supremely qualified for the Supreme Court. The American Bar Association rated her “well-qualified,” the highest rating it gives. She was a law professor at Notre Dame and sat on the Court of Appeals for the Seventh Circuit for three years. Democrats should give Justice Barrett and the new Court a chance before they resort to extremes. To Joe Biden’s credit, he seems to understand the significant negative impact that court-packing would have on democratic norms. Asked about court-packing in a recent 60 Minutes interview, Biden stated that he would create a bipartisan commission of constitutional scholars to study adding seats to the Supreme Court and the rest of the judiciary. Joe Biden is attempting to address but de-escalate the partisanship surrounding the judiciary. Moving the question of court-packing into the hands of scholars from both parties is a good first step. 

Another consideration, and a major reason to wait before entertaining court-packing, is the Court’s ability to moderate itself. Franklin D. Roosevelt wanted to pack the Court in 1937 fresh off a landslide 1936 victory because the Supreme Court constantly struck down parts of his New Deal legislation. A bipartisan group of legislators, including many members of Roosevelt’s party, came together to stop him. The Supreme Court understood what might happen to the integrity of the judiciary if they continued to block Roosevelt’s agenda, so they moderated themselves. They began deciding more cases in Roosevelt’s favor, and Roosevelt was placated. The current Supreme Court has also moderated itself under Chief Justice Roberts since the Court’s last swing vote, Justice Antony Kennedy retired two years ago. Under Barrett, the Court may moderate itself once again. There is no need to polarize the country further by proposing court-packing if it proves unnecessary. The only way to know is by waiting to see how the new majority decides. Maybe this court will be different. Maybe this court will undermine popular will and work against the democratic will. However, packing the Court would be a preemptive strike. It would give no opportunity for the new composition of this court to prove it can interpret the law in line with the ideals of the American people. 

Court-packing would take a tremendous amount of political capital. If Democrats win the Presidency and the Senate, rather than immediately packing the Court, Democrats could take other measures that would expand democracy. Giving statehood to reliably liberal Washington D.C. and politically diverse Puerto Rico would expand democracy by providing representation to roughly 4 million people (comparable to the population of Oregon). While Republicans may be outraged about the possible addition of reliably Democratic seats to the Senate, the expansion of representation is something which no side should take issue with. While expanding the Supreme Court would undermine democracy and the rule of law, statehood would work to expand our democracy. Another way our democracy could be improved is by moving election day to a weekend or making election day a federal holiday. Election day was originally on a Tuesday so that farmers could travel to the polls on a day that did not interfere with their work. Now, it prevents workers from voting because it is on a weekday. In other words, the focus should not be to avoid polarization if it is going to help people. The end goal for both parties should be the expansion and stabilization of democracy. 

Famously, “that’s the way it's always been done” is rarely a reason to keep doing something. However, when it comes to the judiciary, the Founders understood that only through the establishment of an independent and apolitical judiciary can the rule of law function. It is not that court-packing should never be done. Rather, something which will so deeply change the institutional structure of our democracy should only be done in extreme cases. In other words, why use a nuclear bomb if it is unnecessary? The new structure of the Supreme Court will determine if it is.