In their desperation over the prospect of losing the “swing” seat on the Supreme Court, some Democrats are considering a political and constitutional Armageddon if Judge Brett Kavanaugh — a well-qualified, intelligent, and mainstream conservative choice — replaces Justice Anthony Kennedy on the Supreme Court. These Democrats have begun to float the idea of packing the Court should Democrats win the White House and both houses of Congress in the future.
Berkeley Law dean Erwin Chemerinsky recently told the Los Angeles Times, “The idea of expanding the size of the Supreme Court will get traction IF the Democrats take the White House and Congress in 2020. . . . It is the only way to keep there from being a very conservative Court for the next 10–20 years.” Another law professor recently wrote in The Atlantic, “On the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.”
A spate of recent articles in the Washington Post, the Los Angeles Times, and Slate, among others, show where the winds are blowing in the liberal punditocracy. Liberals are offering a variety of plans to expand the number of Supreme Court seats and fill them with liberal or progressive justices, thus guaranteeing that the Court will rubber-stamp the Left’s agenda. One proposal, by a political-science professor writing for the Washington Post earlier this month, calls for the resignation of the “illegitimate” Justice Neal Gorsuch; if that doesn’t happen, Court-packing should ensue. The above-mentioned law professor writing in The Atlantic claimed that Gorsuch’s appointment itself was an act of “packing” the Court.
None of this will prevent a shift to the right on the current Supreme Court. Democrats may resort to scorched-earth tactics to stop Kavanaugh, but President Trump has a deep bench of lower-court judges — the other two dozen on the White House’s list of candidates, to be precise. One of them will eventually get through. With a fifth conservative justice joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the last remaining branch of the federal government will have slipped away from liberal hands. And two of the four liberal justices on the Court are in their eighties. For the first time in about eight decades, the country may have a truly conservative Supreme Court.
Under President Obama, power began slipping away from the Democrats, who currently control neither of the elected branches of the federal government nor the majority of the States. But rather than seek to reform themselves, Democrats have been attempting to discredit the institutions that they cannot control. They have attacked the Electoral College — a constitutional fixture since 1788 — ever since George W. Bush defeated Al Gore in 2000 and Trump defeated Hillary Clinton in 2016. Their attacks on Trump have passed beyond political criticism of an incumbent president and become an onslaught on the institution of the presidency. A Harvard law professor, for instance, has just told Newsweek that Trump’s conduct of diplomacy “could reasonably be defined as treason.” And, on Monday, a House Democrat from Tennessee tweeted. “Where are our military folks? The Commander in Chief is in the hands of our enemy!”
Now the Supreme Court is in the cross-hairs.
Court-packing would destroy the Court’s independence. Indeed, that is the very purpose of such proposals. But in a republic such as ours, judicial independence is essential if constitutional rights are to be protected. In the Federalist Papers, Alexander Hamilton explained that “the complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Limitations on government “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void,” he argued. “Without this, all the reservations of particular rights or privileges would amount to nothing.”
Of course, the Constitution does not require that the Supreme Court have exactly nine members. It leaves Congress the discretion to fix the number of seats. Early in the Republic, when our population was vastly smaller, the number was normally six. In the Civil War period, it briefly reached ten. The number varied partly because of Court-packing schemes by the party holding, or leaving, power. But since the administration of President Ulysses S. Grant, in 1869, the number of Supreme Court seats has been nine.
The only serious effort since then to manipulate the number of justices — that of Franklin Roosevelt in the depths of the Depression, when his popularity and power were at their zenith — decisively failed. Both Republican and Democratic senators rightly viewed FDR’s court-packing plan as an attempt to neuter the Court because it had tried to impose constitutional limits on one of FDR’s signature achievements, the New Deal.
Court-packing is the kind of thing that leaders like Hugo Chávez in Venezuela or Viktor Oban in Hungary do.
From time to time, fair and thoughtful commentators have put forward various reform proposals to phase in new Court seats over a series of different administrations. Those gradual changes would eventually raise the number of Justices to, say, 15. We are not concerned here with such reform proposals. Nor are these Democrats. Instead, they are promoting a naked, unapologetic power grab.
To pack the Supreme Court would be to discredit it as a force in American political life. Court-packing is the kind of thing that leaders like Hugo Chávez in Venezuela or Viktor Oban in Hungary do. It makes the judiciary a tool of the political forces in power at a given moment. It is a policy for dictators or those with a dictatorial bent.
And it is a game that two can play. If a resurgent Democratic party packs the Supreme Court by giving its president the power to fill six new seats, then the next Republican cycle could put the Court’s membership at 27 — or 99. (The Polish Supreme Court has 110 members, the Chinese Supreme Court upwards of 300.) Or Republicans can do away with seats created by Democrats, or even try something truly radical, such as rotating lower-court judges through the Supreme Court for one- or two-year terms.
If Democrats threaten to use their future majorities to fight dirty, Trump, Majority Leader Mitch McConnell, and Speaker Paul Ryan could just as well start first and expand the Court right now.
If the Democrats want to break the Supreme Court utterly and irrevocably, packing it is exactly the way to do that. That Democrats are willing to destroy two centuries of constitutional tradition in order to protect Roe v. Wade and its progeny displays the nihilism at work in their midst.
The Supreme Court should halt, and even reverse, the spread of judicial activism into every social controversy.
Why does a party so closely associated with the idea of a “living Constitution” hold so tenaciously to Roe? If the Constitution is “living,” then any judicial precedent is up for grabs, including Roe and the 1992 Casey decision that preserved it. Neither Roe nor any precedent creates a super-rule that is embalmed in the Constitution in perpetuity.
There is a less destructive path to fixing the Court, for those critics who believe it is ailing. The emerging conservative majority on the Supreme Court should return power to the states and the people by continuing to resuscitate the basic constitutional principle of federalism. They should halt, and even reverse, the spread of judicial activism into every social controversy. When the states, rather than the federal government, decide questions about abortion, marriage, and religion, control of the Court will matter less. Each change in the Court’s majority will not have to be a crisis that shakes the Republic.
Political democracy depends on the existence of a responsible opposition that challenges the party in power vigorously while remaining loyal to our basic institutions. Those institutions depend on respecting certain norms and boundaries, and on a large degree of regard and toleration for political opponents. The politics of nihilism, however, will lead only to destruction.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. Robert Delahunty is the Lejeune Professor of Law at St. Thomas School of Law. They both served in the Justice Department during the George W. Bush administration.