It’s time for Democrats to pack the Supreme Court. They control the presidency and, by the slimmest of margins, both houses of Congress. On the Court, though, conservatives hold a commanding six-to-three majority. Democrats should seize their current opportunity and pass a statute adding four seats to the Court. President Biden could then nominate four progressives to fill the positions. After the Senate confirmed the four nominees, progressive justices would control the Court with a seven-to-six majority.
Unlike many recent proposals to restructure or curb the Court, adding justices is clearly constitutional. While the constitutional text establishes the existence of a Supreme Court, the text does not provide guidance about its size. During the nation’s first century, Congress enacted seven statutes changing the number of justices, ranging between six and ten. In one decade, the 1860s, Congress changed the number of Court seats from nine to ten to seven to nine. From 1869 to 2016, the number remained unchanged, at nine. Yet from February 2016 to April 2017, Mitch McConnell and a Republican-controlled Senate de facto reduced the Court to eight justices when they refused to consider President Barack Obama’s nominee, Merrick Garland. After the Republican Donald Trump was elected president, McConnell, and the Republicans returned the Court to its nine-justice size by confirming President Trump’s substitute nominee, Neil Gorsuch.
The primary criticism of court-packing is that it will undermine the Court’s legitimacy. This argument comes in two versions. First, some critics maintain that the Court is a pure legal-judicial institution, bereft of politics, and that court-packing will destroy this purity. This version is patently false. Congress’s many changes to the Court’s size were often for political reasons, while the nominations and confirmations of justices have always been riddled with politics. For example, in 1795, the Senate rejected President George Washington’s nominee for chief justice, John Rutledge, because Rutledge had opposed ratification of the Jay Treaty. In fact, throughout American history, nearly one-fourth of the Supreme Court nominees have failed. Moreover, despite the claims of some conservative originalists, constitutional interpretation is never a mechanical process uncovering a fixed and determinate constitutional meaning. Interpretation does not resemble arithmetic where one simply adds two plus two to get four. The justices’ political and cultural backgrounds always influence their interpretive judgments, which is why justices disagree in good faith about constitutional meaning (and why presidents and Senators care so much about a nominee’s politics). In short, neither the Court’s makeup nor its decision-making process has ever been apolitical. Court-packing cannot destroy a purity that never existed.
The second thread of the criticism is more serious. According to this view, the Court’s legitimacy does not rest on some mythical purity but on the American people’s acceptance of the Court’s decisions. Court-packing would be unacceptable if it would undermine the people’s faith in the Court. Nevertheless, political science research suggests that court-packing is unlikely to diminish the Court’s legitimacy. The predominant political science outlook, based on empirical studies, posits that the Court enjoys a reservoir of goodwill. This widespread positivity bias is reinforced whenever people focus on the Court. If people read a newspaper article reporting a recent decision, the Court’s legitimacy is likely to be strengthened—even among those people who dislike the Court’s decision. From this perspective, public attention on a court-packing controversy will likely reinforce and might even enhance the Court’s legitimacy. An alternative political science view, also based on empirical studies, ties public perceptions of Court restrictions to political ideology: An individual’s support for restrictions, such as court-packing, turns on whether the Court decides cases consistently with that individual’s political outlook. If this alternative view is correct, court-packing is still likely to enhance the Court’s legitimacy. The current conservative justices hold their six-to-three majority even though the Democrats have won the popular vote in seven out of the last eight presidential elections. Remarkably, since Earl Warren retired as Chief Justice in 1968, Republican candidates have won the popular vote in only six of the fourteen presidential elections, yet Republican presidents have nominated sixteen of the nineteen confirmed justices. Most important, in 2020, Biden easily won the popular vote, so a majority of Americans would likely be dissatisfied with the Roberts Court’s staunchly conservative decisions. Democratic voters would undoubtedly be happy to see Democratic nominees in control of the Court.
Court-packing should not be taken lightly, but it is politically necessary at this time. Democrats are in a position where they can enact a progressive agenda going beyond the New Deal and the Great Society (assuming they can maneuver around the filibuster). Beyond a court-packing statute, however, no legislation might be more important than recent Democratic proposals to protect voting rights. The John Lewis Voting Rights Act, if passed, would resurrect key elements of the Voting Rights Act of 1965, previously invalidated by the Roberts Court. The For the People Act would go even further, protecting voter registration and voting access while restricting gerrymandering, political spending, and voter purges. Whether through these proposed statutes or others, Democrats need to secure voting as a federally protected right immune from state attacks such as onerous voter identification, felon disfranchisement, and mail-in ballot restrictions.
The Roberts Court, though, is the most conservative Court since World War II. It has repeatedly demonstrated hostility toward Congress and democracy, striking down not only parts of the Voting Rights Act but also many other statutes. Democrats must recognize that the conservative bloc of justices will not hesitate to invalidate legislation protecting suffrage. Given this, Democrats must pack the Court—the sooner the better. Democracy itself is at stake. Without progressive control of the Court, voting rights will ultimately be left unprotected, and Republicans will use voter suppression to try to vest control of the national government from the Democrats in 2022 or 2024. But with court-packing, Democratic fears of Republican reprisals—such as tit-for-tat repacking of the Court with conservatives—will vanish. At least for the near future, the Republican party, as currently constituted, would lack sufficient popular support to sweep Congress and the presidency. Going forward, then, court-packing can ensure that, the people—all of the people—can decide who governs.
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Stephen Feldman offers a full-throated defense of the proposition that Democrats should pack the US Supreme Court (@SupremecourtUs) when they get the chance. https://t.co/90v58w5dnG
— Tikkun Magazine (@tikkunonline) August 12, 2021