Law & the Courts

Don’t Try to Expand the Number of Supreme Court Justices

(Jonathan Ernst/Reuters)
Conservatives, too, are tempted by the thought of court packing, during Democratic administrations. It would be neither feasible nor judicious.

Even though Republican presidents have appointed 14 of the last 18 justices, progressive causes have faced decent odds of prevailing at the Supreme Court for nearly a generation. Moderate Republican nominees such as Anthony Kennedy and Sandra Day O’Connor often swung to the left, while David Souter and John Paul Stevens became fixtures of the Court’s liberal bloc. With Justice Kennedy’s retirement, that string of luck may soon come to an end. Faced with this paradigm shift, progressives are coalescing around two responses.

In the short term, Democrats should use any means necessary to prevent President Trump from appointing a conservative replacement. However, if that strategy fails, Democrats should increase the size of the Supreme Court when they regain power. For very different reasons, neither of those approaches is likely to succeed. First, Democrats lack the parliamentary power to stop the process, unless they can persuade their entire caucus, as well as several moderate Republicans, to withhold their advice and consent. Second, Court expansion, without limits, would trigger a downward spiral that irreparably alters how our polity views the judiciary. A better path forward would be to reduce the significance of each nominee, while taking account of why the Court has become so important.

Under our Constitution, the president cannot appoint justices to the Supreme Court unilaterally. Rather, the Senate must provide its “advice and consent.” This two-step process, grounded in the separation of powers, was designed to be inherently political: The president and the Senate will often have different prerogatives. As the Supreme Court assumed its role as the final arbiter of society’s most pressing social issues, it is unsurprising that the stakes of this political process continued to escalate. In 2014 — long before Merrick Garland became a household name — I predicted that if a vacancy on the Supreme Court arose when the presidency and Senate were controlled by different parties, the seat would likely remain vacant for an extended period of time. And that is precisely what happened after Justice Scalia’s death.

Two years later, Justice Kennedy, for reasons about which we can only speculate, timed his retirement for when Republicans hold a 51–49 majority in the Senate. Had he retired after the midterms and control of the Senate switched, the new Democratic majority would have followed the Garland playbook and kept the seat open for two or possibly six years. (In November 2016, President Obama’s former White House counsel acknowledged that, had the tables been turned, she would have recommended the same approach that Mitch McConnell took.)

The path to blocking President Trump’s next nominee is remarkably simple, but politically unfeasible: all of the Democrats and two moderate Republicans must vote no. Indeed, by following the process laid out in the Constitution — denying the president a majority vote — all threats of Court-packing can be averted. But unless something goes horribly awry, that is not going to happen. President Trump’s next nominee will likely be confirmed with roughly the same number of votes Justice Gorsuch received: 54.

Short of voting down the nominee, Senate Democrats could engage in higher-stakes resistance. For example, they could require a quorum call to transact business, thereby forcing Senate Republicans to waste time on the Senate floor rather than on the campaign trail. Or they could refuse certain courtesies that lubricate parliamentary logjams, forcing the Senate to grind to a halt. But again, unless a majority of senators would support those proposals, they are all non-starters. And if a majority of senators support those proposals, they can also vote “no” on President Trump’s nominee. In other words, if there is no majority to vote the nominee down, there is also no majority to engage in these resistance tactics. This simple math renders such short-term plans even more impracticable. As a result, sights have been set on 2020, and beyond.

Several law professors have written that the Democrats should consider packing the Supreme Court when they regain power. Rick Hasen, a law professor at University of California, Irvine, writes that “Democrats may have to turn to more radical measures — like adding more justices to the court.” Hasen has used similar hedges in the past, but in due time, “may” could turn to “must.” Indeed, other law professors have said that threat of Court packing is essential if the nomination proceeds while the president is under investigation. Jed Shugerman of Fordham Law School, for example, tweeted that “Democrats should make clear that if the GOP destroys this tradition, they will expand the Court to 15 in 2021 without filibuster.” (Ironically enough, Shugerman and President Trump agree that the legislative filibuster should be abolished.) Ian Samuel, who will begin teaching at Indiana University’s law school in the fall, stated the position without equivocation: “Filling up those seats with a half-dozen well-qualified young progressives would make Kennedy’s replacement basically irrelevant.” He added on Twitter, “‘Pack the courts’ should be a phrase on par with ‘abolish ICE.’”

This is not a new idea. After his reelection in 1936, President Roosevelt proposed the Judicial Procedures Reform Bill of 1937, which would have allowed him to appoint a new justice for each justice over the age of 70. “The purpose of that feature, of course, was very simply to pack the Court, to add enough new members to force it into submission,” law professor Richard Friedman has noted. Specifically, FDR determined that it was easier to pack the Court than amend the Constitution. With new members, the votes of five conservative holdovers would be diminished. However, as history recounts, in 1937 Roosevelt’s scheme was quickly shot down by members of Congress on both sides of the aisle.

It is simple enough to reject modern-day Court-packing schemes as fantastical. After all, if moderate Democrats today are not prepared to vote “no” on President Trump’s nominee, then they will certainly not go along with voting “aye” on six new justices! However, it is foolish to dismiss these missives so quickly. There is an important feedback loop between society, the academy, and the political process. Ideas that begin as fringe — that is, they are “off the wall” — can, through the gravitas of scholarly endorsement, assimilate into mainstream, “on the wall” thought. Such was the case with the constitutional challenge to the Affordable Care Act. At first, arguments that the law’s individual mandate exceeded Congress’s power to regulate commerce were scoffed at. Ultimately that position garnered five votes at the Supreme Court. That so many professors have so quickly gravitated to court packing indicates that this proposal has legs.

It is not difficult to see how such a plan would irreparably alter the way our polity views the Court: If five justices rule against your favored position, simply add two more who would rule the other way! And why stop at 15? The Supreme Court could aspire to become like the Great Sanhedrin, the 71-member court that met in ancient Israel. True enough, members of Congress could even threaten the Supreme Court with packing if it do not rule a certain way in a particular case. Adjudication by extortion. In addition to expanding the Court, Congress could also contract it: If a justice votes the wrong way, he or she can be impeached. (Fortunately, it is much harder to remove a justice from office than it is to kick a customer out of the Red Hen restaurant.) This downward spiral would quickly unravel our polity.

Today, far too many Americans view the Supreme Court as a political institution. Adding or subtracting justices on a whim would only exacerbate that perception and would in no sense alleviate the underlying cause of the logjam. A far more productive path would be to account for why the Supreme Court has become so important, and to reduce the significance of each appointment. For the past quarter-century, Justice Kennedy has been the sole arbiter of society’s most pressing issues: abortion, the death penalty, same-sex marriage, affirmative action, voting rights, and countless others. Kanye West aptly described our reality: “No one man should have all that power.” It is regrettable that what Alexander Hamilton referred to as “the least dangerous branch” has become the most important branch. Indeed, President Trump recently observed, “Outside of war and peace, of course, the most important decision [a president can] make is the selection of a Supreme Court judge.”

One promising proposal would limit a justice’s term to 18 years. No justice should serve as long as three or four decades.

So long as the Court, and indeed a single member, is capable of deciding issues of such social and political import, presidents of both parties will have every incentive to nominate justices who will more likely decide those issues in a certain way. To reinstitute the judicial filibuster, for example, or to compromise on a moderate selection, would amount to unilateral disarmament. Congress could try to weaken the Court by limiting its jurisdiction to hear certain types of cases. Or, Congress could require a supermajority vote to invalidate legislation: 6–3 instead of just 5–4. (Some state supreme courts follow this rule.) Even assuming that such legislation would be desirable, however, the Supreme Court could find it an unconstitutional intrusion into the judiciary’s independence. (Chief Justice John Roberts hinted as much when he stated that Congress lacked the power to impose an ethics code on the Supreme Court.)

One promising proposal would limit a justice’s term to 18 years. No justice should serve as long as three or four decades. Moreover, if the positions were staggered just right, each president would be able to appoint at least two justices to the Supreme Court. Though sensible, this alteration of the Court would require a constitutional amendment to prospectively eliminate lifetime tenure. It would also require current justices to retire so that new justices, subject to the 18-year terms, could be appointed in their stead. In other words, this plan could take decades to phase in. In contrast, court packing could be accomplished overnight.

There are no simple ways to address our Supreme Court dilemma. Calls to pack or contract the Court would inflict a far greater cost than would maintaining our intolerable status quo. The simplest solution is the one the Constitution prescribes: Deny “Advice and Consent” to unpalatable nominees.

***

Last year, Northwestern law professor Steven G. Calabresi and a former student of his urged Republicans to increase the size of the federal judiciary by 33 percent, allowing President Trump to appoint 261 new lower-court judges, on a party-line vote if necessary. He wrote that his proposal would undo “the judicial legacy of President Barack Obama.” Like most legal scholarship, this proposal was destined to fall by the wayside, but for the identity of its lead author: Calabresi was the co-founder and chairman of the influential Federalist Society. But even right-of-center scholars, including federal Judge William Pryor, opposed this scheme. (Shugerman, the Fordham law professor who threatened Democratic Court-packing, opposed the Republican Court-packing plan.) Last fall, here at National Review Online, I wrote that “conservatives who care about the federal judiciary should disavow this proposal.” Calabresi abandoned the idea after a sharp backlash.

While writing my reply to Calabresi, I knew that, inevitably, progressives would adopt that game plan. Now is that time. It is not enough to say that the plan should be dismissed because the Democrats lack the votes. Rather, the proposal must be rejected on its merits, and not only because the political winds of the day are against it. Otherwise, given time, support would build for adding two, four, or even six new members to the Court. It is far simpler, and more productive, to garner 51 “nay” votes than to radically alter how our judiciary has functioned throughout the history of our Republic.

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