American-history classes often treat FDR’s 1937 “court-packing” scheme — a proposal to expand the size of the Supreme Court by adding as many as six justices — as a classic example of presidential overreach, which led to a widespread backlash even among Democrats and represented a high-water mark for New Deal audacity, subsequently curtailed. It’s not as well remembered that the Lochner-era conservative majority on the Court, in the habit of holding that virtually all economic regulation by Congress violated the due-process clause of the 14th Amendment, was posing an existential threat not only to the New Deal but to democratic governance. It’s also sometimes forgotten that while FDR’s court-packing threats failed to secure congressional support, they did help frighten Justice Owen Roberts into quietly switching sides and ensuring validation of key New Deal legislation by the Supreme Court (the legendary “switch in time that saved nine”).
In other words, the legitimacy and independence of the Court were called into question not by FDR but by his opponents, and he found a way, however indirect and noisy, to restore the balance. As Jamelle Bouie notes in a New York Times column, a future Democratic president may find herself in similar straits:
Trump’s Supreme Court appointments are mired in controversy. Justice Neil Gorsuch occupies a stolen seat, held open during Obama’s tenure by a blockade conducted for nearly a year by McConnell, who cited a previously nonexistent “tradition” of tabling nominations made in an election year. (In the 20th century alone, the Senate confirmed Supreme Court nominees in five different presidential election years — 1912, 1916, 1932, 1940 and 1988). And of course Justice Brett Kavanaugh was confirmed last September under clouds of suspicion that stemmed from accusations of sexual assault and sexual misconduct to a bevy of ethics complaints.
Democrats are left in an unenviable position. Should they win a federal “trifecta” — the White House, the Senate and the House of Representatives — they’ll still have to deal with a Trump-branded judiciary. It’s entirely possible that a future Democratic agenda would be circumscribed and unraveled by a Supreme Court whose slim conservative majority owes itself to minority government and constitutional hardball.
You could add to Bouie’s case that the traditional norms of judicial politics have already been shattered. There’s the fact that Donald Trump broke every taboo by explicitly promising conservative Evangelicals a SCOTUS that would abolish a federal constitutional right to choose abortion, and then set up an outsourced and fiercely ideological judicial-selection process that is radically reshaping all federal courts. But he’s fundamentally and critically correct that what’s at stake in the immediate future isn’t just this or that constitutional precedent, but the ability of a popular majority to enact an agenda, at a time when one of the two major parties has committed itself to minority rule. So if Democrats gain power in 2020 or 2024, they could find themselves in the same position as their New Deal predecessors — or perhaps an even more dire situation, since today’s reactionaries are deliberately entrenching their allies throughout the federal judiciary, not just the Supreme Court.
So is it time for Democrats to openly talk about court-packing or something similarly radical-sounding? Bouie thinks so, and seven Democratic presidential candidates (Cory Booker, Steve Bullock, Pete Buttigieg, Kamala Harris, Wayne Messam, Elizabeth Warren, and Andrew Yang) have told the Washington Post they are “open” to the idea. Only Buttigieg has released a specific proposal (an expansion of the court to 15 members, with five nominated by each party and five more with short-term appointments chosen by SCOTUS consensus). Perhaps the alarming head count of Trump judges, and/or fresh allegations against sitting SCOTUS justices like Brett Kavanaugh, will make judicial appointments and their number and duration a 2020 primary issue among Democrats.
But it’s even more likely that any such talk will provide new fodder for the Trump/GOP message that today’s Democrats are dangerously radical and contemptuous of constitutional norms (not that court-packing is the least bit unconstitutional if it’s done by Congress). At a minimum, conservatives will spend a lot of time telling Christian-right audiences that Democrats are now fighting fire with fire and plan to thwart their own government-by-judiciary schemes aimed at a constitutional counterrevolution. And let’s face it: All the threats to democracy that Bouie and others are warning of will get a lot worse right away if Republicans hang on to the White House and the Senate in 2020. If discussion of judicial reform makes that even infinitesimally more likely, it’s probably a topic that should be placed on a back burner until after the election.
And if things do turn out well for Democrats and they enjoy a governing trifecta in 2021, they could emulate FDR in utilizing court-packing or similar reforms as a way to get the attention of conservatives and perhaps secure their agreement to de-escalate their politicization of the courts. There’s quite a bit of evidence that FDR really wanted to change the pattern of ancient justices hanging on to Court seats forever (their retirement incomes had recently been slashed by Congress, which didn’t help) while awaiting a president of their party to appoint a successor. If moral suasion doesn’t work, term limits for judges could have a much larger and more permanent impact than court-packing schemes (especially if expanded beyond SCOTUS), and just as importantly, it’s a popular idea. A 2018 Ipsos/UVA poll showed 70 percent of Americans — and big majorities of Democrats, Republicans, and Independents — favoring term limits for SCOTUS.
In any event, whether or not they embrace specific reforms, Democratic presidential candidates and the progressives whose votes they are currently seeking need to make the shape of the federal judiciary a big-time campaign issue for 2020 — much as Trump’s conservative Evangelical backers did in 2016. Once Republicans become totally addicted to anti-democratic instruments like the courts to hold on to power absent popular support, it may be difficult to cure them. Threatening them with cold-turkey remedies could well be necessary. And if they shriek about court-packing, they should be reminded that their own efforts to pack the courts with ideologues have broken the system.