In October 2020, Senate Minority Leader Mitch McConnell made the controversial decision to fill the seat of late Supreme Court Justice Ruth Bader Ginsberg with Justice Amy Coney Barrett. The move gave Republican appointees a six out of nine majority on the nation’s highest court, a balance that could have far-reaching consequences for national law. Since then, some Democrats have advocated for adding more justices to the Supreme Court, known as court-packing. Last month, President Joe Biden formed a commission to investigate the possibility of, among other things, court-packing. While not illegal, court-packing breaks with political norms. Should Democrats move forward with court-packing?
When Republicans confirmed their last five Supreme Court picks, they held majorities in the Senate even though they had won a minority of votes. And three out of the nine were nominated by a president who won fewer votes than his opponent. In other words, a majority of the Supreme Court — an ultra-conservative majority — is the result of years of minority rule in Washington D.C. If Democrats don’t pack the court, that group of illegitimate justices will deeply damage our democracy by stripping away our voting rights and forcing the United States into minority rule for years to come.
Even before the Senate confirmed Justice Amy Coney Barrett, Donald Trump’s last illegitimate Supreme Court justice, the conservative wing of the court had taken aim at our democracy. For example, just take the court’s decision in Rucho v. Common Cause, a 2019 case about partisan gerrymandering. Gerrymandering is when a state legislature draws district maps to ensure that one party wins huge majorities even when the state as a whole is competitive. It’s plainly anti-democratic: Voters should choose their politicians, not the other way around. In fact, gerrymandering essentially ensures that one party wins regardless of their popular support. And yet, in 2019, the conservative justices decided that gerrymandering was just fine.
The court’s anti-democratic decision in Rucho is just a taste of what’s to come, and it wasn’t the first time that today’s conservative court disavowed voting rights. It won’t be the last, either.
This year alone, lawmakers in 47 states have introduced more than 300 bills aimed at suppressing votes and making our democracy weaker. Five have already passed, and dozens more are likely to become law. As it stands, the ultra-conservative Supreme Court is likely to apply its warped view of the law to uphold those restrictions, only further entrenching minority rule in our country. Now that the conservative bloc can lose Chief Justice John Roberts and still carry the day, we should expect an even-scarier set of anti-democratic decisions.
However, we do have one recourse: court-packing.
I’ll admit it. The words sound naughty. We’ve been taught to treat court-packing like some sort of dirty political taboo. In fact, my co-columnist correctly observes that I have decried past court-packing attempts motivated by political considerations. But this time, the stakes are different. Packing the court is the only way to ensure that our democracy survives. My argument isn’t about retaliation or left-wing policy, as much as my co-columnist wishes it were. I don’t want a court that will rubber-stamp a progressive or socialist agenda. Instead, I want a court that will preserve our democracy.
First of all, we need justices that will respect, rather than destroy, the cornerstones of our democracy. Our current anti-democratic court has already begun to ravage our voting rights. If we accept that lifetime control of the Supreme Court is in the hands of a dangerous minority party that aids and abets domestic terrorists, stops at nothing to maintain its rule and celebrates the use of state power to kill and maim Americans, then we no longer have a democracy. We might as well have kept King George III around. At least then my co-columnist could openly celebrate his aristocratic fantasies rather than couching them in outdated delusions about preserving an apolitical Supreme Court.
Second, we need to reaffirm that the Supreme Court is a democratic institution. That isn’t to say that all Americans should vote on its justices. Rather, the people who represent a majority of this country should appoint and confirm them. Now that the current president won the popular vote and the current Senate actually represents a majority of the population, we must add legitimate justices to the court.
Finally, we need to restore public faith in the court. In all my talk of legitimacy, I haven’t even mentioned how the three most recent conservative additions to the court were marred by partisan commitments, hypocrisy and — did you guess it? — minority-rule court-packing. And Justice Clarence Thomas, added to the court before Trump’s time, has worrying ties to the former president, his alt-right followers and their violence. In other words, four out of our nine Supreme Court justices are unabashedly partisan. By adding more justices, we can pull the Supreme Court out of the political muck that Republicans steered it into. Court-packing is the only way to depoliticize the Supreme Court and grant it the legitimacy that it desperately needs. My co-columnist might remind us that court-packing is controversial, but so is democracy. That didn’t stop the revolutionaries, and it shouldn’t stop us.
In our context, court-packing isn’t naughty, and it isn’t illegitimate. Instead, it’s the last remaining tool that we have to preserve our democracy. We can’t defend our democracy with old-timey platitudes or by heeding the increasingly inane warnings of yesteryear. We must meet the moment with all that we’ve got. And in times of crisis, when the last bastion of our democracy falters, that means taking extraordinary steps. If our political norms — particularly those around respecting the right to vote and abstaining from politically motivated court-packing — still existed, I would argue for respecting them. But they don’t, so we can’t.
We’re at a turning point in our democracy. We can keep chugging along as we always have, watching placidly as the guardrails turn to dust and the ground crumbles beneath us. Or we can do something, anything, to save ourselves.
Political norms are important. I’d love to go into an idealistic monologue about how court-packing threatens our democracy’s ability to function, but I know my co-columnist is far better at such passionate proclamations than I. Fortunately, he has argued for precisely that in a 2019 article. Political norms, wrote Mr. Graber-Mitchell, “distinguish failed democracies from those like the United States.” Political norms “allow for effective democracy” by providing a kind of unwritten contract, in which parties compete while also following common guidelines and values.
In his brilliant piece, my co-columnist went on to cite what he seemed to consider the textbook example of norm-breaking in American politics: President Franklin Delano Roosevelt’s failed 1937 court-packing scheme, the only other court-packing attempt of modern history. My co-columnist praised how the Democratic senators “stood up against their party leader and refused to resize the court, [thereby] defending political norms rather than merely following the letter of the Constitution.” Court-packing is not some trivial bending of rules. It would break a 152-year tradition of nine justices, and by leaving the size of the court open-ended, it would mean the end of an autonomous Supreme Court, the head of one of the three vital branches of our government.
Had Roosevelt written an op-ed about the need for court-packing in 1937, he would have sounded much like my co-columnist today. The nation was in the depths of the Great Depression, and the conservative court was blocking much of Roosevelt’s New Deal, in what many interpreted as a subversion of democracy. And yet, with the benefit of hindsight, historians agree that Roosevelt’s court-packing plan would have destroyed the fragile government systems we depend upon, all for momentary political gain. It’s true that the American democracy is once again in a time of danger. But isn’t the point of norms that they be maintained even in hard times? If the Trump Presidency taught us anything, it was the importance of norms in protecting our democracy. This is not to say that norms shouldn’t ever change, of course, but changing a norm should be a careful group decision, not a unilateral and self-righteous act of retaliation.
Packing the court would ignore another pillar of democracy: the overwhelming will of the public. According to the latest survey, a whopping 65 percent of Americans oppose court-packing, a supermajority almost unheard of in today’s polarized society. Tellingly, only 28 percent of Americans opposed the confirmation of Justice Amy Coney Barrett. Evidently, the public believes that the country’s current situation does not merit the breaking of long-held norms.
But let us assume that removing the conservative majority is more important than political norms or popular will. Surely court-packing would make the United States a more progressive place, right? Guess again. Supreme Court justices are appointed by the Senate, which, as my co-columnist notes, significantly favors the Republican party. So while Democrats may (barely) control the Senate now, in all likelihood, the Senate will be a Republican stronghold for most of the next generation. If court-packing becomes the new norm, the G.O.P. will be the party to decide which justices to appoint and how many to add. Court-packing gives the current Senate a new weapon to push their agenda, but in doing so, Democrats hand the future G.O.P. Senate a nuclear bomb, and put their faith in Mitch McConnell’s goodwill.
Advocates of court-packing seem to assume that liberals have nothing more to lose, so only drastic measures will suffice. This is false. While the situation is certainly bad for liberals, there are also reasons for hope. The Supreme Court is, by a large margin, the least polarized branch of the U.S. government. In 2020, Justice Elena Kagan, a core member of the court’s left wing, was on the winning side of about as many cases as was arch-conservative Justice Clarence Thomas. Even Justice Sonia Sotomayor, the most liberal person on the bench, ruled with the majority three-quarters of the time. Of the 31 cases heard by the Supreme Court in 2020, only four were decided by a party-line vote. Many experts actually argue that justices have grown substantially less partisan over the past seventy-five years.
Also, history shows that Supreme Court justices have tended to move left during their time on the bench, often dramatically so. While it is impossible to say whether Justices Neil Gorsuch, Brett Kavanaugh and Barrett will become closet liberals during their tenure, it is misleading to argue that the current court composition gives the G.O.P. complete control of the court for a generation. To say that court-packing is the only proportional solution is like prescribing a lobotomy for a patient with a headache.
In short, while the situation is hardly ideal for liberals, the status quo is not as dire as my co-columnist makes it out to be. Introducing court-packing, given the Senate’s institutional preference for Republicans, threatens to make the situation worse for Democrats. I much prefer the current court alignment than a situation where a Republican-controlled Senate has a pretext to add more conservative justices at will.
I can entirely understand the concern many Democrats feel about the Supreme Court and some of its recent rulings. That said, court-packing would achieve none of the noble goals my co-columnist advocates. If, as my co-columnist says, the goal of court-packing is to prevent a minority-controlled court, then surely the better solution is to advocate for changes in how we elect officials. Measures like abolishing the Electoral College would eventually result in a more majoritarian court, and be far more legitimate and popular than this unilateral attempt to seize power.
Every party sees itself as the protagonist, but no party should ever claim to be above the rules. If you start to argue that your motives alone are pure enough to justify norm-breaking, you’re no longer a representative of the public, only of yourself.
That’s how democracies die.