Only the voters can stop lawmakers before they cross this Rubicon.
Only the voters can stop lawmakers before they cross this Rubicon.
O ne of the most radical banana-republic ideas floated during the 2020 presidential campaign was Democrats pushing Court-packing: expanding the size of the Supreme Court in order to change the outcomes of the Court’s decisions in their favor. This would, as I wrote repeatedly in 2019 and 2020, be by far more dangerous to the rule of written law than anything either party has done or proposed in recent memory. It is also hugely unpopular. Last week, Joe Biden announced a presidential commission to study the issue, signaling his continuing openness to what he once described as a corrupt power grab. Now, today, Democrats have introduced proposed legislation to add four more justices to the Court.
The Democrats’ bill, designated the “Judiciary Act of 2021,” is not simply the work of a few radical backbenchers. It is sponsored in the House by the chairman of the House Judiciary Committee (Jerrold Nadler) and the chairman of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet (Hank Johnson). In the Senate, it is sponsored by Ed Markey, a 45-year veteran of Congress who is dean of Massachusetts’s congressional delegation and was a longtime committee chairman in the House. The press release announcing the bill contains statements of support from a flotilla of left-wing legal organizations.
Moreover, during the primary campaign, Court-packing was supported by Kamala Harris, now the vice president and next in line for the presidency should the 78-year-old Biden be unable to finish his term. With Democrats calling for an end to the Senate filibuster, it is entirely possible that the only thing standing between them and blowing up the Supreme Court is a few more House and Senate seats in the 2022 midterms. Republicans, who won multiple Senate campaigns in 2020 in which Court-packing was a major issue (notably in Maine, Iowa, and North Carolina) can and should make this a centerpiece of their argument in 2022 that Democrats simply cannot be trusted with a majority if the Republic is to survive.
There is very little pretense among the supporters of Court-packing that it is justified by anything but a desire to add more Democrats to the Court in order to change how the Court rules on issues. The New York Times says openly that the point is “to balance the conservative majority created by Donald Trump”:
Breaking News: President Biden will create a panel to study expanding the Supreme Court in an effort to balance the conservative majority created by Donald Trump. https://t.co/uXBSCZpdu6
— The New York Times (@nytimes) April 9, 2021
Vox says that the new bill “would add four seats to the Supreme Court, giving Democratic appointees a 7-6 majority.”
A new bill would add four seats to the Supreme Court, giving Democratic appointees a 7-6 majority. https://t.co/BIcEno8feZ
— Vox (@voxdotcom) April 15, 2021
The press release announcing the new bill is full of similar sentiments. Aaron Belkin, the director of Take Back the Court, says openly, “Everything we care about is at risk if we don’t get this bill passed to expand the Court — from the vital democracy protections in HR1 to progress on climate change, racial justice, reproductive freedom, and more.” Others cite decisions they disagree with: Citizens United, Shelby County, Ruchio, even the Court’s refusal to cancel in-person voting in 2020.
And, in some cases, lies. For example, Nan Aron of the Alliance for Justice is quoted saying, “A majority of the justices on the Supreme Court were nominated by presidents who lost the popular vote.” But Justice Clarence Thomas was appointed by George H. W. Bush, who won 53 percent of the popular vote, and Chief Justice John Roberts and Justice Samuel Alito were appointed by George W. Bush after he was reelected with a popular majority in 2004. Roberts got 78 votes in the Senate. Never mind that the Constitution says that presidents are chosen by the Electoral College; five years after Donald Trump’s election, these people still will not acknowledge the legitimacy of his victory. We should trust them to protect the rule of law?
Supporters of Court-packing claim over and over that “trust” in the Court has been lost, totally ignoring opinion polling showing that the Court is more broadly trusted today than it was before the Merrick Garland confirmation fight, and Court-packing is broadly unpopular in polls even with Democratic-leaning demographics. And contrary to the Democrats’ claims, the Senate acted within, not against, historic norms when it declined to confirm Garland during the last year of Barack Obama’s presidency while the White House and the Senate were in the hands of opposing parties, and they again acted within historic norms when confirming Amy Coney Barrett during the last year of Donald Trump’s presidency while the White House and Senate were in the hands of the same party.
The basic, longstanding rules under which our elections have been conducted for a century and a half are that if you win presidential elections, you get to nominate Supreme Court justices when vacancies arise, and pressure the Senate to confirm them; if you win a Senate majority, you get to nominate whom you want without compromise and see them confirmed. Win enough elections over enough years, you can build a majority. Overthrowing that system by rapidly expanding the Court with new justices whenever one side gets a narrow, brief majority in Congress would not only set off a spiral of escalation, badly devalue judicial independence, and destroy public faith in the Court, but it would also undermine our democracy itself, by telling people who labored long and hard for decades to build the current majority that the system was rigged all along and was never going to let their votes matter.
Nadler and Johnson claim that there is precedent for expanding the Court because there are now 13 judicial circuits, whereas the Court in the 19th century expanded with the number of circuits. But this entirely ignores why that was. Justices before 1869 were required to “ride circuit,” physically visiting the circuit courts in order to hear cases. Every expansion of the Court’s size between 1806 and 1869 marched in step with the expansion of the physical size of the country, the entry of new states, and the workload of the justices. The creation of permanent circuit-based appellate judges in 1869 and permanent circuit courts in the Evarts Act of 1891 eliminated any practical need for more justices, and the Court’s size has remained stable ever since. Expanding the Court today would do nothing to increase its capacity to do its job.
Our system has a powerful norm against Court-packing, which has held ever since an overwhelmingly Democratic Congress resoundingly rejected Franklin D. Roosevelt’s Court-packing plan in 1937. Biden himself has cited FDR’s proposal as a “power grab”: “Roosevelt — I remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view, unveiled his Court-packing plan.”
Biden refers to court packing a "power grab" in 2005: pic.twitter.com/AhQWp1a8F3
— Eddie Zipperer (@EddieZipperer) October 10, 2020
FDR’s allies on Capitol Hill at the time were even more vivid on the authoritarian threat posed by the plan. House Judiciary chairman Edward Cox said:
[Court-packing would] enable[e] him, through willing appointees, to change the meaning of our basic laws and our whole system of government, asks for something which no man in all this world ought to enjoy. The recommendation constitutes the most terrible threat to constitutional government that has arisen in the entire history of the country.
The Senate Judiciary Committee’s report on FDR’s proposal stated that:
[Court-packing is a] declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!
[Court packing is] a measure, which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.
Let us now set a salutary precedent that will never be violated. Let us of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact.
More recently, the late Justice Ruth Bader Ginsburg also warned against Court-packing:
Nine seems to be a good number. It’s been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court. . . . 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 Stephen Breyer just echoed Ginsburg’s sentiments in a speech at Harvard Law School last week:
The court’s authority is based on “a trust that the court is guided by legal principle, not politics,” Breyer said, adding that “structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” Breyer said.
Speaker Nancy Pelosi has said that she will not bring Nadler’s bill to the floor just yet, while Biden’s commission is studying the issue, but she hardly closed the door to Court-packing:
I think it’s an idea that should be considered and I think the President’s taking the right approach to have a commission to study such a thing. It’s a big step. It’s not out of the question. It has been done before.
In the end, only the voters can stop the Democrats before they cross this Rubicon. The step, once taken, would be the beginning of the end of a nation of laws.