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The Case Against Court-Packing

Restoring a less politicized judiciary will not be achieved by imitating the GOP’s thuggish tactics, writes Brennan Center Fellow Walter Shapiro.

June 24, 2019

On a spark­ling Saturday morn­ing earlier this month, Pete Butti­gieg stood on an elev­ated back porch in Des Moines pitch­ing his notions on chan­ging the struc­ture of the Supreme Court. As the 37-year-old mayor of South Bend, Indi­ana put it, “I’m trying to get every­one think­ing about the fact that struc­tural reforms are an option.”

Once Demo­crats limited them­selves to talk­ing about appoint­ing Supreme Court justices who would uphold Roe v. Wade and over­turn Citizens United. Now 2020 Demo­crats are openly discuss­ing term limits for Supreme Court justices, increas­ing the number of justices on the court, and other reforms designed to thwart the conser­vat­ive judi­cial vision.

At a mid-May town meet­ing in Nashua, New Hamp­shire, Cali­for­nia Senator Kamala Harris said in response to a ques­tion, “I’m open to this conver­sa­tion about increas­ing the number of people on the United States Supreme Court.” And Beto O’Rourke, the former three-term congress­man who narrowly lost a Texas Senate race in 2018, has been pump­ing for his demo­cracy agenda that includes a consti­tu­tional amend­ment mandat­ing 18-year term limits for Supreme Court justices.

When the New York Times asked the 2020 Demo­crats about whether they favored expand­ing the size of the Supreme Court, Massachu­setts Senator Eliza­beth Warren said that she was “open” to the notion. Warren, a former Harvard law professor, poin­ted out, “The number of people on the Supreme Court is not consti­tu­tion­ally constric­ted.” Amy Klobuchar, who serves on the Senate Judi­ciary Commit­tee, also said that she has an open mind on the ques­tion.

Call it the revenge of Merrick Garland, who never even received a Senate Judi­ciary Commit­tee hear­ing when Barack Obama nomin­ated him to fill Antonin Scali­a’s seat in 2016.

Butti­gieg, while speak­ing to about 150 voters in an afflu­ent Des Moines neigh­bor­hood, made the Garland connec­tion expli­cit. “Not only has the makeup and the size of the court changed about half a dozen times in Amer­ican history,” he said, “but I would argue that it also changed in 2015 when the Repub­lic­ans changed the number of justices on the Supreme Court tempor­ar­ily to eight. And then they changed it back to nine when they took power.”

The South Bend mayor is correct that the number of Supreme Court justices, which can be altered by legis­la­tion, has varied from six to 10 at vari­ous points during the 18th and 19th centur­ies. But that number has been fixed at nine justices since 1869.

Rather than getting caught up in the merits of specific reform propos­als, the real ques­tion is whether the Demo­crats, if victori­ous in 2020, should try to tinker with the struc­ture of the court.

The obvi­ous paral­lel is Frank­lin Roosevelt’s effort, shortly after his 46-state land­slide reelec­tion to a second term, to pack the Supreme Court.

Frus­trated by a string of conser­vat­ive Supreme Court decisions that endangered the future of the New Deal, FDR startled the polit­ical world in early 1937 by propos­ing a radical reshap­ing of the court. Under Roosevelt’s complic­ated legis­lat­ive plan, the size of the court would increase each time a sitting justice reached his 70th birth­day and failed to retire. What this meant in prac­tice was that, if the legis­la­tion passed, Roosevelt would have the power to imme­di­ately appoint six new justices to augment the six who were then over 70.

FDR’s court-pack­ing plan has been remembered as a case study in how even popu­lar pres­id­ents can fall victim to the arrog­ance of power and over-extend their polit­ical mandates.

But the scheme, which was opposed by lead­ing Senate New Deal­ers, also fell apart for other reas­ons. A conser­vat­ive justice, Owen Roberts, suddenly decided that Roosevelt’s ambi­tious meas­ures were consti­tu­tional after all and aban­doned his reac­tion­ary allies. Another conser­vat­ive jurist (Willis Van Devanter) retired open­ing up a seat for liberal Hugo Black. And, finally, Senate Major­ity Leader Joseph Robin­son died suddenly depriving FDR of his most loyal ally in the court fight.

At a time when Donald Trump and Senate Major­ity Leader Mitch McCon­nell are shred­ding the norms of demo­cracy on almost a daily basis, it is diffi­cult to argue that Demo­crats should be constrained by Roosevelt’s failed legis­lat­ive maneuver more than eight decades ago.

But the last­ing moral from the court pack­ing fight is that, in a func­tional demo­cracy, struc­tural prob­lems often solve them­selves. Even without legis­la­tion in the late 1930s, five Supreme Court justices either died or retired during Roosevelt’s second term allow­ing him to at last create a liberal major­ity.

The prob­lem with 21st century efforts to reshape the Supreme Court is that, while legal, they seem like a banana-repub­lic attempt to change the rules in the middle of the game. Yes, McCon­nell has trampled Senate tradi­tions in the rush to confirm conser­vat­ive judges. But if there is any hope to restore a less politi­cized judi­ciary after Trump leaves office, it will not be achieved by imit­at­ing McCon­nell’s bully tactics.

It is also plaus­ible that elec­tions could deprive McCon­nell of the abil­ity to thwart Demo­crats’ attempts to fill vacan­cies on the courts. If, for example, a Demo­crat wins the pres­id­ency in 2020, it is not hard to imagine a 50–50 Senate with the Demo­cratic vice-pres­id­ent cast­ing the decid­ing vote. Also, the dwind­ling band of Senate GOP moder­ates like Alaska’s Lisa Murkowski (who is not up for reelec­tion until 2022) may temper McCon­nell’s dreams of guar­an­tee­ing a perman­ent right-wing Supreme Court major­ity.

The prin­cipled argu­ment against 21st-century court pack­ing is that it is danger­ous to tamper with the mech­an­isms of demo­cracy to thwart a single polit­ical figure — in this case, McCon­nell. For times change while power even­tu­ally ebbs. But restruc­tur­ing the Supreme Court could have last­ing reper­cus­sions long after the current crisis is as forgot­ten as the mid-1930s conser­vat­ive decisions that jeop­ard­ized the New Deal.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: P_Wei)