As feared, Donald Trump should have enough votes from hypocritical Republican senators to push through his Supreme Court nominee, in violation of the rule against confirming people in a presidential election year that Mitch McConnell invented to block Merrick Garland’s nomination in 2016.
We are in a crisis. If Trump and McConnell confirm another justice before the inauguration, the court will be slanted, 6-3 in favor of justices appointed by Republican presidents. Of those, one, Clarence Thomas, was accused of repeated sexual harassment. Another, Neil Gorsuch, was elevated only after McConnell took unprecedented steps to block the nominee of a Democratic president. A third, Brett Kavanaugh, has been accused of lying to Congress; participating in a scheme to steal preparatory e-mails from Democrats on the Judiciary Committee; exposing himself and making unwanted sexual advances to a college classmate; and attempting rape while he was in high school. And now Trump and McConnell propose to add a fourth justice while an election is underway, perhaps to be confirmed by a lame-duck Senate full of people who may have already been voted out of office.
In response, there seems to be a cadre of moderate Democrats, both in office and lurking around the political landscape, who are desperate to come up with any solution to this crisis other than expanding the number of justices on the Supreme Court should they take power.
Expanding the number of justices (dubbed “court packing” after Franklin Delano Roosevelt’s failed attempt to stack the court with justices amenable to New Deal policies in 1938) is the most direct way to address the structural imbalance brought about by Republican manipulation of the nomination process. Democrats could, through legislation that passes both chambers of Congress and is signed by the president, add additional members to the court, and then fill those newly added seats. Perhaps the Democrats could add four justices to balance out the four Republican who shouldn’t be there. As I wrote back in February, I favor a plan that would add 10 justices to the bench.
But instead of organizing around a political solution to the Republican politicization of the courts, some Democrats remain stuck on the old rules of engagement. Some Democrats remain hopeful that Republicans can be shamed into doing the right thing, as if the party that steps over 200,000 dead bodies to carry Trump’s golf bags is capable of feeling shame. Others, including a number of serious legal scholars, have taken to offering an increasingly fanciful set of possible solutions to the likely problem of a court with six conservatives. The idea of term limits—that is appointing Supreme Court justices for a set number of years instead of indefinitely until they die or retire—is incredibly popular. Polls show that 77 percent of Americans favor some form of restriction on the length of service on the Supreme Court.
The problem is, term limits are also flatly unconstitutional, and while there are some very creative plans to get around the Constitution’s pronouncement that Supreme Court justices serve while in good behavior, none of those plans can explain why a conservative-controlled Supreme Court would agree to such limits on their own tenures.
Meanwhile, over at The Week, Ryan Cooper suggested that Democrats simply ignore the Supreme Court’s authority of judicial review, set in the landmark 1801 case Marbury v. Madison. Judicial review is what allows the Supreme Court to rule certain laws “unconstitutional” in the first place. Without it, pretty much anything the legislature declares constitutional is constitutional. Cooper suggests that presidents should merely assert that Supreme Court rulings are advisory opinions, instead of binding law. Neat! If you don’t like what the court says, you can just ignore it. That’s great, so long as you’re also willing to accept the possibility of Republican administrations reinstituting segregation and reauthorizing laws against “sodomy.”
Name me an inventive, nonpartisan solution to the current dilemma faced by Democrats, and I will show you a constitutional defect the conservative Supreme Court will use against it. The only exception is court expansion. That’s why the resistance to the idea puzzles me. It is perhaps the single constitutional remedy to a high court that no longer reflects the will of the people or represents the nation it serves.
Article III of the US Constitution, the part that establishes the Supreme Court, is incredibly short given the court’s importance in our constitutional system. It asks very little of the Supreme Court, which at the founding was not thought to be a particularly important branch. Section 1 of Article III does almost all of the work. Read it for yourselves:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
From that brief blurb there are only three things worth noting: “Judicial power” is undefined (which is why Chief Justice John Marshall was able to define it in Marbury v. Madison); justices serve for life; and the structure of the courts, including how many people are on it and the qualifications for their appointment, is left entirely up to Congress and the president.
Now, I’m not an originalist. I’m not a part of the Federalist Society, so I do not make the intellectually dishonest claim that I have a Ouija board that allows me to know what the men who wrote these rules truly intended. In addition, I happen to be Black, which for me means that even if you proved to me exactly what this collection of slavers and colonizers was really thinking, I wouldn’t care.
But I can tell you that the men who wrote this document absolutely acted as though the number of Supreme Court justices was flexible and ripe for political manipulation. The Supreme Court opened with six justices. But after John Adams lost the presidential election of 1800 to Thomas Jefferson, Adams reduced the number of justices to five during the lame-duck period before Jefferson took office. It must be noted that Adam’s so-called “Midnight Judges Act” reduced the number of seats to five “upon the next vacancy” on the court. Again, limiting the tenure of Supreme Court justices has simply never been okay, but changing how many people sit on the court has always been constitutional.
Jefferson, of course, didn’t give a damn about Adams’s act. This is an important point for current Democrats to understand. Despite Adams’s efforts to control the court through lame-duck legislation, Jefferson reversed him immediately upon assuming office, and restored the number of justices to six.
In 1807, on his way out the door, Jefferson added and filled a seventh seat on the Supreme Court. No constitutional crisis ensued.
A seven-member court was what was in place when Andrew Jackson set his sights on it in 1837. Jackson added two more seats to the Supreme Court and filled them. That dude really did not want there to be a national bank, or rights for Native Americans. It was the first time the Supreme Court reached nine justices, which represents a 50 percent increase from the number of justices on the court at the founding, less than 50 years earlier.
The number of Supreme Court justices changed again during the Civil War years: ballooning to 10, shrinking back down to seven, and then finally landing back at nine with the Judiciary Act of 1869.
Much has changed since then. For instance, we now recognize that women are, like, people, with a right to participate and vote on the laws under which they are governed. I don’t know what the women of America thought about a nine-justice Supreme Court in 1869, because nobody asked them. It seems like this should be relevant to the people who think a women’s right to her own body is a matter of political debate but the nine-justice Supreme Court is sacrosanct.
Despite various social changes and the 13 Constitutional Amendments ratified since 1869, the part of the constitution governing how many justices are on the court has remained unchanged. It was up to Congress in 1787; it was up to Congress in 1869; and it is up to Congress today.
It was up to Congress in 2016, as well, when Senate majority leader Mitch McConnell decided for 10 months to reduce the number of justices on the Supreme Court to eight to thwart the power of a president he didn’t like. McConnell is not a genius. He’s not the first white man in American history to figure out that manipulating the number of justices on the Supreme Court is a way to assert a political agenda he could not achieve at the ballot box. He’s not the first person to futz with the court in order to gain political leverage.
If McConnell seems historically powerful, it is because the opposition has not committed to doing whatever it takes to stop him. Should the Democrats win control of the presidency and the Senate, changing the number of justices on the Supreme Court is the proportional constitutional response to McConnell’s winning control of the Senate in 2014 and changing the number of justices on the Supreme Court to eight until a Republican won the White House. It is our constitutional system working as intended, or at least as the men who wrote the system worked it.
Everything else is radical. Changing the appointment power, as McConnell has tried to do, so that Democratic presidents are not allowed to appoint Supreme Court justices or lower court judges is radical. Changing the lifetime tenure of federal judges is radical. Ignoring the judicial power of the United States—as Trump has done after a ruling upholding the DACA program, and as Christian conservatives have tried to do in the face of rulings confirming LGBTQ rights—is radical.
Expanding the number of people who sit on the Supreme Court is a normal American solution to a problem that has happened before in our history. It might not be easy for Democrats to wrap their heads around that politically, but, constitutionally speaking, it’s the easiest option on the table.
It’s also the first arrow Democrats must pull out of their quiver. There are lots of things Democrats claim they want to do to restore our democracy after the Trump era, but none of that can happen if they don’t add justices to the court first. If Democrats wait to address the Supreme Court until they fulfill other priorities, then the first thing a 6-3 Supreme Court will do is reject those priorities. It will repeal any Democratic health care plan, or any attempt to restore a health care plan. It will rebuff attempts to make Trump or his cronies sit for depositions and face justice. It will nullify attempts to add D.C. as a state (and Puerto Rico if that were, somehow, what the majority of Puerto Ricans wanted). It will rule the “John Lewis Voting Rights Act” just as unconstitutional as the Voting Rights Act that John Roberts gutted. And since the party in power tends to lose seats in the midterm elections, any attempt to expand the court after 2022, as the country gets used to a permanent conservative majority on the court, becomes even harder.
Should the Democrats win, there can be no other priority for them in 2021 that takes precedence over expanding the court, because the 6-3 court has been packed specifically to thwart their agenda.
Win the Senate. Win the White House. Pass a bill expanding the court. That is how democracies work. And if Republicans win in the future and pass a different bill and add even more seats, so be it. That is also how democracies work.
A country where only one party gets to appoint Supreme Court justices—justices, moreover, who may then get to decide who wins a presidential election that was already underway when they were appointed—is not how democracies work. That’s how despotism works. That’s how the constitutional system fails.