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The Weak Case for Packing the Supreme Court

American democracy can't afford for yet another critical institution to be crippled by partisan warfare.

President Franklin D. Roosevelt, circa 1941. (Keystone Features/Hulton Archive/Getty Images)

The Trump era is giving Democrats a bruising lesson in the distribution of American political power. Thanks to the Electoral College, the Senate, and gerrymandering, Republicans have enjoyed outsized influence over the course of national events over the past few years. Democratic candidates and liberal thinkers thus have rallied around proposals that would rebalance the system in favor of popular rule—but some of them want to go further than that.

There’s a growing push for the next Democratic president to appoint additional justices to the Supreme Court, a process typically referred to as court-packing. Eric Holder, Barack Obama’s first attorney general, is the latest high-profile convert to the cause. He told a group of Yale law students last week that if he were president, he would “seriously consider” adding two justices in response to Senate Majority Leader Mitch McConnell’s “power-grabbing antics.” Pete Buttigieg, a Democratic presidential candidate, floated the idea of expanding the court’s membership to 15 justices.

Packing the court is surprisingly easy, at least at first glance. The Constitution does not specify how many justices can be placed on the Supreme Court’s bench. Congress set the limit at nine justices in 1869, and it could theoretically change that number whenever it so wished. But doing so would permanently change the Supreme Court and its role in American society.

The court has always been a political institution, both in its internal workings and its external impact. Making its composition dependent on whether the same party controls the White House and the Senate would enshrine it as a partisan institution as well. Court-packing would deal a serious blow to the American tradition of a strong, independent judiciary, which ranks as one of this country’s great political achievements. It should not be done lightly, if at all.

The current debate surrounding court-packing may lack depth, but it’s rapidly growing in breadth. A network of liberal groups and activists have taken up the issue, including Indivisible and the aptly named Pack the Courts. Harvard law professors Laurence Tribe and Mark Tushnet formed the 1.20.21 Project, which calls for four additional Supreme Court seats and an expanded bench in the lower federal courts. A poll in November by Fix the Court, a nonprofit judicial watchdog group, found that 42 percent of Democrats would favor court-packing over other structural reforms for the high court, like term limits.

This strategy isn’t without pitfalls. For starters, any packed Supreme Court majority could prove to be only transitory. With the court-packing taboo broken, there would be nothing to stop the GOP from expanding it again whenever they next take both houses of Congress and the presidency. The result would transform the Supreme Court into something closer to Britain’s House of Lords, where governments can simply add new members whenever they want to secure control of the chamber. The only way court-packing would give liberals a permanent victory is if the GOP never took full control of the government—an unlikely prospect at best.*

Court-packing’s proponents haven’t yet made the case for such extraordinary measures. Some on the left point to justices Neil Gorsuch and Brett Kavanaugh as justification enough. “We don’t consider those two seats that Trump has filled to be legitimate,” Brian Fallon, the executive director of Demand Justice, a leading liberal judicial advocacy group, told The Washington Post. Gorsuch in particular is viewed as illegitimate. In 2016, after Antonin Scalia’s death, McConnell refused to allow a vote on Barack Obama’s nominee, Merrick Garland; Trump, once president, then nominated Gorsuch. McConnell later called his decision to block Garland’s nomination “the most consequential thing I’ve ever done.

McConnell will be damned in American history for his shameless hyper-partisanship, but his actions did not amount to an illegitimate theft of the seat. The president has every right to nominate a Supreme Court justice, and the Senate has every right to ignore him. McConnell’s decision essentially turned the 2016 presidential election into a referendum on the future of the Supreme Court. Republicans saw the stakes—the first five-justice liberal bloc since the Warren Court—and rallied behind the least-qualified major-party presidential candidate in the history of the republic. Democrats and the left stayed home in key states. And while Kavanaugh’s behavior during the confirmation hearings should have disqualified him from a seat on the court, the Senate disagreed.

What’s left is a raw utilitarian argument. The Supreme Court likely will be a bulwark of conservative legal rulings for the next generation. Justices Ruth Bader Ginsburg and Stephen Breyer are 85 and 80 years old, respectively. Justice Clarence Thomas, the oldest conservative justice, once reportedly vowed to serve on the court until the 2030s. Democrats could win every federal election until then and still see their legislative projects—Medicare for All, the Green New Deal, and more—struck down by the court.

That may ultimately give liberals the best argument for packing the court. Franklin D. Roosevelt didn’t propose his court-packing plan until after the justices had spent two years striking down New Deal legislation. Even then, the plan was widely panned by Congress and failed to gain traction among the public. (Before the plan’s announcement, and unbeknown to Roosevelt, Justice Owen Roberts had already begun voting in favor of New Deal cases behind closed doors.) Today, the stakes are even higher. The Green New Deal or something like it may ultimately represent the country’s best chance to stave off the most destructive effects of climate change. Blocking it without sufficient justification would justify dramatic steps.

But today’s court-packing debate is premature. The Supreme Court hasn’t even finished its first full term with its current bench, and Chief Justice John Roberts has begun siding with the court’s liberal bloc more often than usual. He will never be mistaken for a liberal jurist, but he’s known as an institutionalist who wants to protect the court’s reputation. Roberts may yet refuse to join sweeping rulings by his conservative brethren on major social issues or political disputes, just as he did by saving the Affordable Care Act in 2012.

I argued in October, after the national disgrace of Kavanaugh’s confirmation, that the left may have to choose between accepting a generation of legal defeats or undermining the court’s independence through extraordinary political measures. Court-packing is just a fanciful idea for now, but it’s clearly gaining traction; it may well grow into a bona fide movement. Then Roberts will have to decide whether to tempt such a battle with majority decisions that flout the popular will, or to follow in the footsteps of an earlier Justice Roberts.

* A previous version of this article implied that Republicans could pack the Supreme Court with control of the White House and Senate alone. In fact, any such measure would also need to pass the House of Representatives, which is currently controlled by the Democrats.