Within hours of the death of Ruth Bader Ginsburg, the minds of political activists were already spinning forward—way forward, past President Donald Trump’s nominee, past the rushed Senate confirmation process that puts that person on the court, to what the Democrats should do next year if they win decisively in the election.
One likely framework looks like this: It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court. Democratic partisans will be furious at Mitch McConnell’s gaming of the system—and at the undemocratic fact that the party that lost the popular vote in six of the last seven presidential elections now controls the Supreme Court indefinitely. Frustrated and powerless to reverse history, the Democrats will reach for the one weapon in their arsenal to fix this: Packing the court with new justices.
Within days, or moments, of the start of a new Senate session, Majority Leader Chuck Schumer announces his intention to move legislation that would expand the Supreme Court from nine to 13 members, to “repair the wound inflicted on our Constitution by the Republicans’ refusal to recognize the will of the electorate.” The Senate and House pass the bill, and President Joe Biden signs it on Inauguration Day.
It’s an approach Democrats are already raising. Simple, right?
Time for a reality check.
It’s true that Congress can shape the size of the court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new justices. (After Ulysses Grant was elected president in 1868, the number was bumped back up to nine, where it has remained ever since.)
But when it comes to the court, there are and have been “institutional” concerns that have trumped the simple exercise of political power.
The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a court that was striking down much of his New Deal legislation. After his landslide reelection in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15. (It was the “nine old men”, political folklore had it, who were thwarting the president.) Despite his popularity, and the overwhelming control of Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice president, John Garner, fought it. The Democratic leader in the Senate rejected it. Chief Justice Charles Evans Hughes, responding to the urgings of liberal court-packing foe Montana Sen. Burton Wheeler, wrote a public letter saying that, contrary to FDR’s concerns, the court was not overworked at all, thank you very much. The proposal died in Congress before a vote was taken.
Today, one of the more significant institutional voices against expanding the court is … Joe Biden. In July 2019, Biden said “we’ll live to rue that day” if the court was expanded. In a debate, he said it would lead to round after round of expansion and the court would “lose all credibility.” Senator Bernie Sanders, no stranger to radical ideas, has also said he doesn’t want to pack the court. So has the more moderate Michael Bennet.
But that was before the coming war over RBG’s seat.
If a new Democratic president and Senate are taking power just after a blatant GOP power grab in the face of the electorate’s choice, any reluctance on the part of Biden or a Senate Democrat would face the full fury of the Democratic base. Steve Bannon once famously said that, in politics, “We [the Right] go for the head wound, and your side has pillow fights.” If there’s a Supreme Court seat or two to avenge, the pillow-fight approach might end. Apart from the hunger for political payback, a conservative court shaped by Mitch McConnell would mean the all but certain death of the Affordable Care Act, the potential overturn of Roe v. Wade, and a generation of judicial hostility to the core ideas of the Democratic left.
So, if Senate Republicans won’t stop McConnell from jamming a justice through the Senate, would Senate Democrats really be constrained by their prior doubts about expansion? One of the likeliest consequences of the confirmation of a “lame duck” justice is a battle royal within the Democratic ranks over just that question—hardly what a new President Biden needs, as he deals with multitrillion-dollar deficits, a still-deadly viral pandemic and lingering economic woes.
As FDR’s scheme showed, court-packing doesn’t have to be as simple as just elevating additional justices to the court. There are several alternatives that have been debated in legal and academic circles: They range from giving each political party five justices, who would then choose five more; to limiting the terms of judges so that every president gets two picks; to making all 180 federal appeals court judges members of the court, with panels of nine chosen at random to rule on all matters, including which cases the court would take up. (This change would require only legislation; proposals for limiting the terms of justices would require amending the Constitution.)
They all have the quality of careful thought and the nonexistent possibility that any of them becomes reality in the midst of a full-blown constitutional brawl. And if Congress pushes through a restructuring of the court on a strictly partisan vote, giving Americans a Supreme Court that looks unlike anything they grew up with, and unlike the institution we’ve had for more than 240 years, it’s hard to imagine the country as a whole would see its decisions as legitimate.
There’s a good reason that more than 80 years ago, in a time of turmoil, a Democratic president at the peak of his political power nonetheless found his plans thwarted by members of his own party, who found the cost of tinkering with constitutional machinery too high a price to pay. If McConnell calls a lame-duck session in the face of an electoral loss to lock in a conservative court majority, however, it’s hard to imagine any such concerns staying the hands of Democrats.
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September 20, 2020 at 05:05AM
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How Democrats Could Pack the Supreme Court in 2021 - POLITICO
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