Across the ebb and flow of history, presidents and senators have pushed and pulled the Supreme Court in one direction or another. Often buffeted by political winds, the Court has nevertheless maintained a safe remove from the whirl of everyday politics, insulated by the Constitution.
But these days, for some, the “right side of history” isn’t arriving quickly enough.
There is a movement afoot to persuade the crop of presidential contenders to endorse the idea of adding justices to the Supreme Court — not as a needed reform or a move toward easing the workload of the current justices, but as a naked display of power intended to shift the Court’s ideological balance.
In a way, it’s refreshing that the supporters of this idea are not trying to hide their intent. But even so, it’s a dark road they are headed down.
To be clear, there is nothing in the Constitution that would bar Congress from adding justices to the Court. Through the 19th century, the number fluctuated several times before Congress settled on nine in 1869. It has remained at nine for a century and a half.
But norms play just as important a role in civil society as does law. And packing the Court would abandon 150 years of agreement that overtly politicizing the courts is dangerous to the foundational principle of an independent judiciary.
The Supreme Court, like all institutions of government, is a political body. But that does not mean it is a partisan body. The Court serves a different function than Congress and the president. While the Court has always suffered criticism depending on whose ideological ox is being gored, its legitimacy depends on its moral authority and on society’s acceptance of that authority. Preserving that bargain is how we can ensure that the Court remains the protector of our freedoms no matter which way the political winds are blowing.
The very concept of packing the Court would establish a different vision — a politicized judiciary with judges chosen solely to accomplish specific political results. It would convert the Court into a super-legislature, chosen for life and unaccountable to voters. At the same time, it would exacerbate the already troublesome trend toward abdication of Congress’s role as lawmaker, as the elected branches would simply leave difficult political decisions to their unelected colleagues on the Supreme Court.
Judges are human and therefore imperfect. But the ability of litigants before the Court to have confidence in a neutral adjudication of the facts and application of the law is fundamental to our system of justice. Even if we don’t assume that a tenth, eleventh, or 15th justice would be politically motivated, perception matters. The Court’s decisions would be seen as nakedly partisan by many, diminishing respect for the rule of law and for the authority of the Court.
Apply a simple test to the court-packing proposal, one that should be applied to any argument for more political power: Imagine it in the hands of the politician or political cause you most oppose.
When President Franklin D. Roosevelt unveiled his notorious court-packing scheme in February 1937, he was fresh off a landslide reelection and his party enjoyed huge majorities in both houses of Congress.
But history was moving too slowly by Roosevelt’s reckoning. Several New Deal initiatives had been blocked by the Court, and he wanted justices who would do his bidding.
At first, it appeared he would get them. But opposition built slowly, led to a great extent by a member of his own party, Montana senator Burton K. Wheeler, an ardent New Dealer.
In a national radio address, Wheeler offered an eloquent explanation for his position that still rings true: “Create now a political court to echo the ideas of the executive and you have created a weapon . . . that can cut down those guarantees of liberty written into your great documents by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion.”
In a 2017 paper titled “How to Lose a Constitutional Democracy,” University of Chicago Law School professors Aziz Huq and Tom Ginsburg called FDR’s gambit a “low point for the rule of law in the United States.”
Where would such a process end? Each party would pack the Court when it came into power (this is exactly what happened in 1801–02), risking legal havoc and further eroding the rule of law and popular respect for the Court.
That the American experiment has succeeded is no accident. It is, in part, the result of a carefully constructed system of government with checks and balances to ensure that power is not consolidated in one person or body, and our liberties thereby imperiled. Congress makes laws, the executive enforces them, and the judicial branch interprets the laws and applies them. Unlike members of Congress or the president, then, the best judges are not those who respond to popular will — those roles are already taken — but those who accept that they are restrained by the law and who apply it as written. Such judges, even when they reach results one may not like, serve as a critical check on the political branches, answering to the Constitution and ensuring that our freedoms are not subject to majority vote.
The Supreme Court is the last legal resort to which individuals can appeal to protect their freedoms and settle disputes. The cases, we often forget, involve real people with real problems. Would anyone want the final decision makers in their case to operate from such a blatantly political mindset, or to be chosen not for their fairness and expertise but to accomplish a specific result?
Packing the Supreme Court would make it far more likely that we would be faced with exactly that kind of justice. And that would be no justice at all.