Somewhere in the unit on the Great Depression and New Deal, our high school teacher dismissed President Roosevelt’s attempt to increase the size of our Supreme Court from its pristine nine-ness as an act of political eccentricity. Quixotic. Bungling. Delusional. I adopted this story about Court-packing as common sense, and spent little time thinking about the Court’s composition and structure, even after eventually becoming a lawyer. I was comforted knowing that the country was becoming more diverse and moving left. The Supreme Court was not exactly a beacon of progress, but it seemed that appointments yielded a somewhat predictable centrism. With some exceptions, the more conservative opinions of the Court languished in salty minority dissents. I bemoaned the age gap between my generation and the aging Justices but assumed that soon enough, younger progressives would replace them. Then, Donald Trump became president and appointed two conservatives to the Supreme Court. Everything I thought I knew about the future of the Supreme Court was wrong.
I pondered this day in the hangover fog of November 9, 2016, and more broadly, the long-lasting harm that a radical conservative Presidency would do to any efforts to bend the law towards progressivism. A five-four majority would mean a rollback of protections against government intrusions, oppression, and abuse, of reproductive justice rights, of the right to marry whomever we choose without fear of sanction from the government, of anti-discrimination guarantees and affirmative action measures, of economic justice rights, of the welfare state, and of regulations intended to make the world safer for all of us. The list is too long. With the Court firmly in the hands of the conservatives, we could finally surrender the hypotheticals.
If only the Court’s conservatism reflected the country’s political will, then perhaps I could make my peace with our present reality. But as my colleague Pete Davis points out, this is not close to being the case. In all but one of the last seven presidential elections, the popular vote has gone to the Democratic candidate. More precisely, between the 1992 election and now, the only time the Republicans ever won the popular vote was when George W. Bush beat John Kerry in 2004. To reflect the political choice and orientation of the nation, the last four appointees on the Court should have been appointed by a Democratic candidate. As the nation moved left politically, we indirectly voted for a Supreme Court composed of six Democratic appointees and three Republican appointees. All we have to show for it is a five-four Court, resistant to the polity’s will. There is no scenario in which this status quo is at all fair.
This leaves us three options. Well, four, if we count traveling back to 1788 to abolish the Electoral College, and then fast forwarding a little to grant statehood to the District of Columbia (Puerto Rico should also become a state but in this time-traveling scenario, I would recommend we err on not “purchasing” nations like cattle in the first place). For obvious technological reasons, the other three solutions merit more attention.
So, there’s the first option: giving up. Organizing to win hard-fought battles only to lose the war by the stroke of a Supreme Court Justice’s pen. Watching our best legal arguments languish in passionate dissents. Hoping that Koch Industries leaves enough of a world for our grandchildren to defend before a more liberal Supreme Court. Or, we could call for Kavanaugh’s impeachment on the charge that he demonstrably and repeatedly lied under oath. But that, too, is a highly remote possibility. To remove a Supreme Court Justice, a majority of the House must vote to impeach before two-thirds of the Senate either convicts or acquits the Justice. The only time Congress has ever deployed this procedure was in 1804. The House impeached Justice Samuel Chase, only to see him acquitted by the Senate the following year.
It would be surprising if a Democrat-controlled House of Representatives had the appetite to impeach Brett Kavanaugh. Newly minted House members, particularly the more moderate ones, may be hesitant to move for impeachment when it is unclear that the Senate would convict. For better or worse, political winds and the news cycle shift quickly while political capital, itself finite, must be allocated strategically. In the last two years alone, President Trump has been accused of campaign finance fraud, tax evasion, compromise by a foreign government, jailing undocumented infants, and of telling easily disprovable lies both on the record and campaign trail, among other offenses. If only one impeachment proceeding could be pursued, then the sheer volume of potential grievances would make President Trump a target more salient than Kavanaugh. But there’s yet one more option.
We can, and should, pack the Supreme Court. As law professor Ian Samuel recently explained on the Current Affairs Podcast, the Constitution does not set the number of Justices on the Supreme Court. Nothing requires it to be nine, which means that Congress could at any time pass a statute to change the Court’s size. Adding a few more would be straightforward, and would easily ensure the Court’s composition better reflected the actual ideological balance of the country. I fall squarely in the camp proposing that we expand the Court to 11 seats. But I also believe in adopting term limits, instead of relying on the lifetime appointments that hinge the future of the nation on a given Justice’s interest in keeping up with evolving social norms, and ability to outlive a President whose taste in replacement they would not trust. Under this plan, each President would have the right to appoint two Justices to the Court per four-year term, with each Justice serving on the Court for 22 years.
Here is what it would look like in practice. The sitting President, say the winner of the 2020 election, would start by appointing two new Justices. Any Justices on the Court who already has served for 22 years would retire immediately. The President would replace Justices Ruth Bader Ginsburg, Clarence Thomas, and Stephen Breyer with two liberal jurists and one conservative Justice. The remaining Justices would continue to serve their 22 year term, counting from the date of their appointment. Conveniently, the last three Presidents who appointed Justices to the Court were each able to select two Justices within a single term, including President Trump. This means that the winner of the 2024 election would get to replace Chief Justice John Roberts and Justice Samuel Alito. The 2028 winner would replace Justices Elena Kagan and Sonia Sotomayor. Finally, the winner of the 2036 election would replace Justices Gorsuch and Kavanaugh. (The statute could account for the 2032 Presidential term by permitting a replacement only if a seat became vacant.) The years are fungible, but you get the idea.
This approach would strike a healthy compromise, which is not to say it would guarantee a utopian outcome. But it’s the kind of idea we might be able to sell to less progressive politicians whose votes we would need to achieve a slightly less terrifying status quo. Until the 2024 election, the Court would remain in a six-five balance for the liberals, which would generously give the conservatives a meaningful say on the Court while restoring a balance reflective of the popular vote. The most democratic way to pass this plan would be to require a two-thirds, filibuster-proof, supermajority in the Senate after the bill’s simple approval by a simple majority of the House. Thus unless the Democrats swept the Senate or the filibuster was repealed, a number of Republican and possibly Independent Senators would have to sign on to the plan for Court-packing to pass.
Despite the reasonableness of Court-packing, the proposal has conservatives in a tizzy. Over at the National Review, John Yoo warns that “Court-packing would destroy the Court’s independence,” and that, “in a republican government such as ours, judicial independence is essential if constitutional rights are to be protected.” (Yes, that John Yoo, father of the Torture Memos proliferated during George W. Bush’s administration.) Yoo further argues that “it is a game that two can play. If a resurgent Democratic party packs the Supreme Court by giving its president the power to fill six new seats, then the next Republican cycle could put the Court’s membership at 27 — or 99 … If Democrats threaten to use their future majorities to fight dirty, Trump, Majority Leader Mitch McConnell, and Speaker Paul Ryan could just as well start first and expand the Court right now.” Another National Review contributor, Ramesh Ponnuru, concurs. “If conservatives do find themselves in the position to pack the courts after liberals have already legitimated the idea, then surely they will do so — it would be crazy for them not to do so. And if each side treats the courts this way, then the courts will lose power relative to the elected branches.”
However radical Court-packing may sound, there is actually a rather long history of changing the Court size, starting with the Founding Fathers. The Judiciary Act of 1789 established a Court of six, a Chief Justice and five associate justices. But President John Adams was keen on preventing his successor, Thomas Jefferson, from appointing a new Justice. So, he and his lame-duck Congress passed a short-lived statute reducing the size of the Court to five. The new Congress repealed the statute and returned the Court size to six seats until the statutes expanding the Circuit of Appeals districts added three Supreme Court Justices to the Court between 1807 and 1837.
During the Civil War, President Abraham Lincoln and Congress added a 10th Circuit and accompanying Supreme Court Justice. His explicit goal: protecting both the Union and Lincoln’s agenda against slavery, in the face of reactionary Court decisions like Dred Scott. SCOTUSBlog writes that the Court manipulations went even farther. “In 1866, just after the war ended, Congress enacted legislation reducing the Court’s size by attrition to seven, thereby preventing President Andrew Johnson – a fierce opponent of congressional Reconstruction plans – from nominating any Justices … Three years later, with Johnson out of office, Congress returned the size of the Court to nine Justices, where it has remained ever since.” Of course, that’s only because President Franklin Delano Roosevelt’s attempt to add another six Justices to the Supreme Court—for the noble purpose of protecting his New Deal legacy—failed miserably. Still, while Roosevelt’s failure is a go-to example, Court-packing’s longer history makes clear that it’s not such a far-fetched idea.
Indeed, Court manipulation has always been a feature of these United States. Despite our normative pretense to the contrary, it has also always been clear that the Supreme Court is not actually an independent organ of government. Earlier Presidents, from the Founding Fathers and Abraham Lincoln to FDR, understood that the Court’s power could make or break progress. It could undermine efforts to abolish slavery and implementation of the New Deal programs then, just as it can undermine our democratic priorities today.
More than that, it would be naive if not disingenuous to review Brett Kavanaugh’s resume, his relationship to the Federalist Society, his work for the special prosecutor appointed by the Republicans to impeach President Bill Clinton, and his time advising President George W. Bush in the Office of White House Counsel, and to expect an apolitical Justice. There’s a reason that the Republican-controlled Senate refused to let President Obama fill Justice Scalia’s with centrist Judge Merrick Garland, just as there’s a reason why President Trump rammed Kavanaugh’s nomination through. Many judges, some more than others, enter the Court with political leanings and instincts that can radically change its political balance. It will remain so whether the Court is composed of nine Justices or 11.
Then, there are dire warnings that nothing would stop the other side of the aisle from appointing 90 Justices, as John Yoo says. But the reality tells another story. Despite its history of fluctuating size, today’s Supreme Court has been capped at a cool nine seats for more than a century. It thus seems that actually, something has stopped the other side from Court-packing into oblivion. Importantly, the fact that the Republicans have no real reason to put in the work to expand the Court right now. With Scalia’s seat open at the beginning of Trump’s term and Kennedy’s eagerness to pick his own conservative replacement, the Republicans were all but guaranteed the majority necessary for them to continue catering to the minority of voters through the Court.
Another part of the story is that, as I explained, it takes both political power and a concrete number of votes to pass a judiciary act. Something Yoo and Ponnuru obfuscate in their arguments is that unless the Republicans are willing to do away with the filibuster for major legislation, they do not have 60 votes needed to amend the Court’s size. Historically speaking, they seldom ever do. In fact, since the political parties realigned at the dawn of the Civil Rights Movement, the Republicans have never held a filibuster-proof majority in the Senate. By comparison, the Democrats have done so seven times since 1959.
Coincidentally, this provides helpful context to answer the reasonable question of whether the Democrats should risk a plan that could backfire. What if the tides ebbed back in favor of the Republicans? Again, to change back the size of the Court, the Republicans would have to overcome the 60-vote barrier (to amend the statute) andwin the White House (to appoint candidates of their choice). We already know that the only reason they won three of the last seven contests was because the Electoral College handed them two such victories contrary to the popular vote. We also know that the Republicans are not very good at winning supermajorities in the Senate. Meanwhile, the Court-packing plan to 11 seats guarantees them two Justices per term if they can win Presidential elections. In this light, it makes little sense for the Republicans to expend efforts to pack the Court to Yoo’s hypothetical 99 seats.
And what do we have to lose? Our bodily autonomy, our right to be safe from harm and abuse, our civil rights, and our right to a future on this planet, our hopes for a better and fairer future are already on the chopping block. I’ve lost count of how many friends and colleagues have told me how much despair they feel when they think of the future. Why fight if it will all be for naught? It’s a good question and truth is, I don’t know why anyone should fight to lose. But I also know that I’m not willing to accept that this is my only option and neither should you. No one ever said we could only shift one Overton window at a time. So let’s pack this Court.
A longer version of this essay was published on our website on October 10, 2018.