Many political trial balloons have been floated in the contest for the 2020 Democratic presidential nomination. One truly awful idea–advanced by such groups as “the 1/20/21 Project,” “Demand Justice” and the aptly-named “Pack the Courts”–is to increase the number of Supreme Court justices in order to nullify the current majority, whose decisions they don’t like. This radical idea should have died in the 1930s with the failure of FDR’s infamous court-packing scheme. Regrettably, however, several presidential candidates have expressed openness to it.
Why is this such a terrible idea? Because it poses an existential threat to the federal judiciary. Federal courts can’t function effectively unless their judges are politically independent and objective both in fact and in public perception. Every federal judge takes a statutory oath to “do equal right” to all litigants by dispensing justice impartially. Controversial cases arise frequently, often producing decisions that are unpopular with one political faction or another and subject to intense debate over their legal merits. This is to be expected. However, the judiciary will lose its credibility, and hence its value in our system of government, if its decisions come to be widely viewed as the product of political bias rather than objective legal analysis.
The resurrected court-packing scheme rests on two premises that are antithetical to the concept of an independent, impartial judiciary. One is the explicit and spurious charge that the Supreme Court as now constituted is illegitimate. The other is an implicit mindset that judges are mere politicians in robes who serve the agenda of the party responsible for their appointment. As one leading court-packing proponent, former Hillary Clinton political operative Brian Fallon, puts it:
“At Demand Justice, we strongly believe that reforming the court — especially by expanding it — is the cornerstone for re-building American democracy . . . The Kavanaugh court [sic?] is a partisan operation, and democracy simply cannot function when stolen courts operate as political shills. We are thrilled to work in coalition with the team at Pack the Courts to undo the politicization of the judiciary.”
The hypocrisy in describing court-packing as a means to depoliticize the Court is breathtaking. Over recent decades, both parties have done everything within their power to politicize judicial appointments to the Supreme Court and lower federal courts. The court-packing proposal, if implemented, would put the final nail in the coffin. Court-packing is fundamentally an exercise in raw political power designed to offset one group of supposed “political shill” judges by adding political shills more to the proponents’ liking. Its objective is not to depoliticize the Court but to re-politicize it in a different direction by shifting its alleged bias from right to left. The claim that this will somehow advance democracy is equally risible.
In addition to its intellectual dishonesty, this ultimate escalation in partisanship would likely trigger a continuous expansion in Court membership with no end in sight. If Democrats won the White House and Senate in 2020 and succeeded in packing on enough additional justices to shift the majority to their side, Republicans could be counted on to add even more justices in order to regain the majority the next time they controlled the appointment process.
Like other proponents (see here and here), Fallon contends that the current Court majority is illegitimate because Republicans “stole” a Supreme Court seat from the Democrats when they stonewalled President Obama’s nomination of Merrick Garland to replace the deceased Antonin Scalia. This argument is disingenuous since Democrats almost surely would have stonewalled a Republican president’s nomination had the situation been reversed. (See here.) Both parties share a sordid history in recent years of blocking the other party’s judicial nominees for political reasons. One particularly shameful example was the Chuck Schumer-led filibuster against Miguel Estrada’s nomination to the Court of Appeals for the D.C. Circuit. Schumer feared that placing such an outstanding nominee as Estrada on the D.C. Circuit would position him eventually to become the first Hispanic-American elevated to the Supreme Court.
The notion that the Supreme Court seat was “stolen” from Democrats also is nonsense. Obviously it never belonged to them in the first place. No president is entitled to confirmation of his or her nominations; the Senate has the constitutional right to withhold its advice and consent to Supreme Court (and any other) nominations. Republicans deserved harsh criticism for denying Garland a confirmation hearing, but they had no obligation to confirm him. In the final analysis, Democrats “lost” the vacant Supreme Court seat (if they insist on viewing it that way) not by theft but because they lost the 2016 presidential election. In fact, this vacancy may well have determined the outcome of the election. Polling confirms that Supreme Court appointments are a key consideration for presidential voters, and the pending vacancy was a major factor in 2016 voting, particularly among Trump voters.
No one who values and respects the federal judiciary could embrace the court-packing proposal as a matter of principle. Supporting it probably is bad politics as well. While court-packing may offer red meat to Democratic primary voters, at least those on the far left, it would likely be a significant political negative in the general election. Unlike court-packing advocates, most Americans favor an independent, nonpartisan federal judiciary and are concerned that the courts are already too politicized. (See below.)
There is a desperate need to halt the downward spiral of cynical moves and counter-moves by both parties that have driven judicial appointments ever deeper into the hyperpartisan abyss. However, the remedy certainly is not to resurrect court-packing. Instead, we must somehow find a way to revive the bipartisan appointment process that served the Nation well in the not too distant past. It featured an understanding between the political parties that well-qualified judicial nominees of good character deserved confirmation regardless of which party controlled the White House and Senate. This understanding applied to both “liberal” and “conservative” nominees as long as they fell within the mainstream of legal thought. There was also a bipartisan consensus that election results matter and thus a president’s choice of nominees was entitled to some degree of deference.
Under this longstanding and commonsense regime, Supreme Court justices as ideologically disparate as Antonin Scalia and Ruth Bader Ginsburg were confirmed by overwhelming Senate majorities. Unfortunately, we have now descended to the point where party line votes are the standard practice for Supreme Court and even lower federal court confirmations. The threat this poses to the continued viability of the judiciary is quite real. While the public still has far greater confidence in the federal judiciary than the two political branches, they view judicial decisions as increasingly tainted by political bias. Court-packing would re-enforce this perception in spades.