The conservative movement has done what progressives never could: turned drastically reforming the Supreme Court into a mainstream idea within the Democratic Party.
This week, Republicans cemented their 6-3 Supreme Court majority by confirming a 48-year-old, far-right justice to the bench in flagrant defiance of principles they had preached just four years ago. Such bad faith — combined with the Roberts Court’s hostility to voting rights, labor, economic regulation, and reproductive choice — has brought previously marginal ideas for judicial reform to the center of Democratic politics.
Moderate Democrats have largely declined to endorse manufacturing a liberal majority through court expansion (a.k.a. “court packing”) should voters give them the opportunity. But Joe Biden has argued that “the court system” is “out of whack” and vowed to empanel a bipartisan commission tasked with producing recommendations for reforming the federal judiciary. The editorial board of Bloomberg.com (an eponymous publication of the Democratic Party’s biggest donor in recent cycles), meanwhile, argued Tuesday that “the Supreme Court needs reform” and expressed particular fondness for the following proposal:
[O]ne idea that’s attracted attention is to limit terms on the court to 18 years, and allow for two appointments per presidential term. After a transitional period, the court would have nine members, as now, but the appointments process would be more regular and therefore less fraught, and justices would no longer have reason to time their retirement to give the power of appointment to a president they prefer. However, the Constitution provides that justices serve “during good behavior,” which some legal scholars interpret to mean life tenure. Granting “senior status” to justices at the end of their term, allowing them to stay on the federal bench and sit on lower courts, might offer a solution and pass constitutional muster.
Former Stanford Law School dean Larry Kramer advocated for a version of the same proposal in an op-ed for the New York Times this week. And other means of party-neutral reform have gained attention in recent days. Among these is the “balanced court” plan, under which the Supreme Court would always have 15 justices: five Republican, five Democrat, and five appointed consensually by the other ten. Different legal wonks favor different schemes. But the basic principle underlying the various plans for nonpartisan reform — that narrowing the power and political salience of the Supreme Court without advantaging either party is preferable to court packing — is a consensus position among the Democratic elite (the advocates for such reform run the gamut from the Bloomberg editorial board to longtime Elizabeth Warren adviser Ganesh Sitaraman).
And the goal of party-neutral reform has much to recommend it. Most progressive advocates for court expansion make their case in defensive terms, not offensive ones: The goal isn’t to establish an equal but opposite left-wing juristocracy but to disarm the existing reactionary one. After all, progressives are less reliant on counter-majoritarian institutions to advance their ideological goals (environmental regulation, Roe v. Wade, universal health care, and voting rights are popular; gutting the EPA’s authority, fetal personhood, ACA repeal, and most voting restrictions are not). Thus, simply gutting the Supreme Court’s capacity to serve as a vehicle for minority rule — by burdening it with a high turnover rate or partisan balance that renders the conservative legal strategy obsolete and greatly restricts the exercise of judicial review — would accomplish much of what court-expansion supporters wish to do.
What’s more, theoretically, the nonpartisan approach could accomplish these things in a more durable way: If Democrats simply use their trifecta to engineer a liberal majority, there is no doubt the GOP will respond in kind the next time they secure unified federal power. By contrast, if Democrats implement a nonpartisan reform plan that’s plainly aimed at strengthening the Court’s legitimacy and independence from partisan politics, it’s at least possible that Republicans will have greater difficulty restoring a conservative majority as soon as they get the chance. To be sure, conservative media will ensure that the bulk of Republicans regard the formation of a “balanced court” as the death of the American Republic. And most GOP officeholders will be eager to avenge the “theft” of their 6-3 majority. But the mainstream media is likely to cover nonpartisan court reform much more positively than court packing. And if the GOP finds itself with a thin House or Senate majority, it’s plausible that its swing-district and swing-state members will refuse to get onboard, just as many did with ACA repeal. Given the high risk that a Supreme Court packed by the Republican Party would seek to entrench its power through an even more aggressive assault on voting rights than the one we’re currently witnessing, Democrats might be wise to make their reforms as resilient against repeal as possible.
All of this said, virtually all of the party-neutral reforms have a flaw that court expansion lacks: They are unprecedented at the federal level, which makes their constitutionality subject to argument.
Bloomberg’s editorial acknowledges this point with regard to Supreme Court term limits. The posited solution to this problem — upholding justices’ lifetime tenure on the federal judiciary but not on the Supreme Court — makes sense to me. But it doesn’t matter what I think about its constitutionality. To take effect, the existing conservative Supreme Court majority would need to vote to (1) erode its own personal power and (2) nullify the conservative movement’s decades-long quest for judicial supremacy. Even if you immediately confirmed Biden’s first (of two) guaranteed justices after passing the law, the conservatives would still boast a 6-4 majority. Which is a big problem! After all, if the Roberts Court could be trusted to drastically disempower the conservative movement in response to a persuasive argument from liberal lawyers, then court reform wouldn’t be necessary (and much of recent U.S. history would be different).
Court expansion, however, is undeniably constitutional. Congress has changed the number of seats on the Supreme Court seven times since the founding. Given these realities, if your ideal court reform is an unprecedented, party-neutral restructuring of the federal judiciary passed with a modicum of bipartisan support, then you should want Biden to pack the Court first.
By adding four liberal justices to the Court shortly after taking power, a unified Democratic government would create the preconditions for a bipartisan settlement on the judiciary. Biden could specifically handpick justices who have publicly expressed their support for 18-year term limits or a “balanced court.” And if he wished to signal that court packing isn’t his goal but merely an expedient, Biden could have such justices publicly promise to resign upon the passage of nonpartisan reform. Regardless, the point is this: By manufacturing a 7-6 liberal majority, Biden could simultaneously guard against the threat of nonpartisan reform being struck down and potentially put Republicans in a position where they would be willing to negotiate. The latter is far from certain. In the immediate aftermath of court expansion, Republican obstructionism would doubtless hit a fever pitch. But after a year or two of a liberal majority dealing the Federalist Society major losses, the GOP might come crawling back to the table.
This whole scenario may sound fanciful. And it probably is. But it’s a bit more realistic than the core premise of Biden’s commission and Bloomberg’s editorial: that Republicans can be persuaded that “both parties” have a “mutual interest” in reducing the political power and salience of a Supreme Court that the Republican Party controls. Conservative activists have labored for decades to place six ideologically vetted Republican appointees at the top of the judiciary. They are closer to overturning Roe v. Wade (or, in their terms, beating back fetal genocide) than they have ever been. Just as crucially, their party’s core aims are not democratically viable and are only going to become less so as the millennial and Zoomer generations keep aging into the electorate. The American right has a reactionary juristocracy, and it intends to keep it. You can’t reform the Roberts Court until you disarm it, and you can’t get any significant GOP support for party-neutral judicial reform until the alternative is progressive judicial dominance.
To be sure, the scheme I’ve outlined would be problematic in many respects. Court expansion is likely to be covered with hostility under any circumstances, and if it’s presented as a negotiating tactic, that might reinforce its sense of illegitimacy. Further, once a liberal majority is in place, Democratic lawmakers may have a hard time voting to eliminate it, thereby handing potential primary challengers a potent issue. Finally, I have not put sufficient thought into any of the nonpartisan reforms to be confident that they are preferable to simply expanding the Court.
But unless proponents of party-neutral court reform are willing to trim their sails, court packing will be a prerequisite for their more respectable designs. There are some unimpeachably constitutional, if relatively modest, measures that Congress could enact to diminish the Roberts Court’s power, such as revoking the Supreme Court’s authority to choose which cases it hears. For more thoroughgoing restructuring of the judiciary, however, radical change is a necessary first step on the path to moderate reform.