Donald Trump has already appointed 91 judges to the federal judiciary. Thanks to Mitch McConnell’s ruthless subversion of Senate norms, the president is poised to appoint more than 100 additional federal judges before his first term ends. There’s a decent chance that at least one of those will be a Supreme Court justice (Ruth Bader Ginsburg is 86 years old).
The high court’s existing conservative majority has evinced few qualms about legislating from the bench. Within the past two decades, conservative jurists have gutted the Voting Rights Act, legalized most forms of political bribery; rewritten antitrust law; declared voluntary school desegregation plans unconstitutional; invented an individual right to bear arms; abolished virtually all restrictions on corporate spending in American elections; overturned an Arizona law that attempted to counter such spending by providing candidates with public funds; restricted the capacity of consumers and workers to sue corporations that abuse them; rewrote Barack Obama’s Medicaid expansion in a manner that enabled red states to reject the program (thereby condemning thousands of Americans to preventable deaths); and came within one vote of striking down Obama’s entire health-care law on audaciously specious grounds.
Meanwhile, the world’s top climate scientists say that averting ecological catastrophe will now require a World War II–style mobilization — which is to say, aggressive forms of state intervention in the private economy that many conservative jurists regard as unconstitutional.
Together, these realities have persuaded a large number of progressive activists and intellectuals that reforming the federal judiciary may well be a prerequisite for social progress (if not human civilization’s long-term survival). And now, they have convinced a significant number of Democratic presidential candidates of the same:
Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand told POLITICO they would not rule out expanding the Supreme Court if elected president, showcasing a new level of interest in the Democratic field on an issue that has until recently remained on the fringes of debate.
… “We are on the verge of a crisis of confidence in the Supreme Court,” said Harris (D-Calif.). “We have to take this challenge head on, and everything is on the table to do that.” … Gillibrand said in an interview that she believes Justice Neil Gorsuch essentially possesses an illegitimate seat after Garland was denied even a committee hearing. The New York Democrat added that the Senate should move swiftly to impose strict ethics rules on the Supreme Court.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Warren (D-Mass.), who mentioned bringing appellate judges into Supreme Court cases as an option.
“It’s a conversation that’s worth having,” she added.
This is an encouraging development for the reasons outlined above. But Politico’s coverage of the issue elides (or underemphasizes) three critical points:
1. Democratic candidates want to reform the courts, not pack them.
Court-packing is a pejorative in American politics, one that connotes a partisan power grab. Thus, it makes sense that Republicans would wish to describe the plans that Warren and Harris are mulling as “court packing.” But progressive advocates for those plans should probably avoid doing so —not least because the term is inaccurate.
As Warren suggests, the goal is not merely to expand the Supreme Court, or to turn a bastion of conservative judicial activism into a liberal one. Rather, the idea is that one could nullify the threat that a reactionary, activist judiciary (appointed largely by men who were not popularly elected) poses to self-government in the U.S. without triggering an endless court-packing arms race — by establishing new rules that lower the stakes of Supreme Court appointments, and suppress judicial partisanship.
In article for Vox last fall, the legal scholars Daniel Epps and Ganesh Sitaraman outlined two different ways in which this could be achieved. When Warren mentioned “bringing appellate judges into Supreme Court cases,” she may have been referencing their first suggestion:
[C]hanging the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court “panel” would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.
This approach would effectively eliminate the high stakes of Supreme Court appointments, thereby taking the Court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of each court decision. No single judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next panel — arriving as soon as two weeks later — might have a different composition and take a different tack.
Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices could not pick cases with a partisan agenda in mind; another slate of justices would hear the cases they select.
They also offer a “balanced court” solution, in which “ten justices — five Republican and five Democratic — would be chosen through a political process much like our current system” and then “these politically appointed justices would need to unanimously pick five additional justices, drawn from the courts of appeals, to sit with them for a year.”
Of course, today’s Republicans are likely to view any reform that nullifies their hard-won Supreme Court majority as an illegitimate power grab. But if you squint hard, you can imagine a world in which Democrats win federal power, pass one of these judicial reforms — and then retain power long enough to endow the new system with bipartisan legitimacy. That said, red states would liable to start nullifying Supreme Court decisions in the interim.
Regardless, such concerns are almost certainly moot for the foreseeable future because:
2. The next Democratic president is extremely unlikely to have the votes necessary for reforming the Supreme Court.
Democratic senators Cory Booker, Amy Klobuchar, Michael Bennett, and Dianne Feinstein have all already voiced opposition to meddling with the Supreme Court’s composition. Which is to say: It isn’t just red-state moderates like Jon Tester and Joe Manchin who stand in the way of judicial reform — it’s the median member of Chuck Schumer’s caucus. Heck, many of the Senate’s most progressive senators can’t even bring themselves to endorse abolishing the (utterly irrational) legislative filibuster.
Meanwhile, Democrats will need to pull off a minor miracle just to secure a single-vote Senate majority in 2021. And even if they dominate the next two election cycles, they still (almost certainly) won’t be in a position to pass any laws that don’t have the support of the likes of Booker and Klobuchar. What’s more, absent a drastic escalation in the Roberts Court’s activism, public opinion is unlikely to force moderate Democrats’ hands. Thanks to the public’s capacious ignorance of 99 percent of Supreme Court rulings, rank-and-file Democratic voters actually espouse a broadly positive view of the existing judiciary; as of last month, a plurality of Democratic voters approved of Chief Justice John Roberts, while just 7 percent described him as “very conservative” (despite the man’s evisceration of landmark civil-rights legislation, and myriad efforts to expand corporate power).
Reforming the courts is a good policy — and may prove a necessary one. But there’s no evidence it’s good politics. Which means that moderate Democratic senators are unlikely to budge, absent a massive judicial power grab that eviscerates a core Democratic achievement.
Nevertheless, the push for Supreme Court reform remains worthwhile because:
3. Building support for reform could temper John Roberts’s appetite for judicial activism.
Franklin Roosevelt never managed to pass his “court packing” scheme — but the threat alone (ostensibly) forced a reactionary high court to make peace with the New Deal state.
There’s reason to think that contemporary efforts to politicize the court (or, perhaps, to politicize the right’s politicization of said courts) could have a similarly beneficent effect. In her forthcoming biography of John Roberts, The Chief, journalist Joan Biskupic reports that Roberts initially intended to join his four conservative colleagues in voting to strike down the Affordable Care Act, but was reluctant to make such a sweeping intervention into an issue as potent as health care. Thus, he reportedly negotiated a “compromise” with Stephen Breyer and Elena Kagan, which resulted in those two liberals voting to undermine the Medicaid expansion, while Roberts voted to preserve the bulk of the law.
Biskupic holds out the possibility that Roberts’s “change of heart really arose from a sudden new understanding of the congressional taxing power.” But the weight of the available evidence suggests otherwise.
And even if the justices do not consciously consider the risk of political backlash, that threat still might unconsciously inform their reasoning. So long as progressives are loudly preparing plans for stripping the court of its present prerogatives, its conservative jurists will have some cause to worry that striking down the next expansion of public health insurance might be more trouble than it’s worth.
Granted, as stipulated above, the threat to reform the courts isn’t currently an empty one. But Roberts may wish to protect this status quo, by declining to give Amy Klobuchar & Co. a good excuse to change their minds.