In recent days, as Republicans have scrambled to fill a Supreme Court vacancy on the eve of an election — in brazen defiance of ethical principles they preached four years ago, and in a manner that tosses economic relief and basic respect for public health onto the back burner — they’ve also made time to express their shock and dismay at the Democratic Party’s ruthless politicization of the judiciary.
Specifically, the GOP’s elected officials and aligned commentators have decried Joe Biden’s treacherous refusal to promise that he will not expand the size of the Supreme Court if elected. To take two representative examples: Utah senator Mike Lee delivered a jeremiad against “court packing” at Amy Coney Barrett’s confirmation hearing Tuesday, scolding Biden for contemplating an action that would do “immense political and constitutional harm toward this mode of government in part because it would set up a one-way ratchet” that would “delegitimize the court.” Commentary’s Noath Rothman, meanwhile, said of Biden’s caginess about his views on court packing, “This is contemptuous and unacceptable. The flippancy with which they talk about fundamentally altering the civic compact is reprehensible.”
However reasonable these protests may appear in isolation, they’re a bit rich in context. As Lee and Rothman both concede, altering the size of the Supreme Court is perfectly constitutional. And Congress has asserted its authority to do so several times since the republic’s founding. In the present context, court expansion would arguably constitute an upholding of our republic’s “checks and balances” rather than a violation of them: The Roberts Court has repeatedly impinged on Congress’s prerogatives through activist decisions, striking down a critical section of the Voting Rights Act shortly after the Senate had reauthorized the legislation unanimously. The Court has greatly constricted Congress’s capacity to regulate campaign spending, and came one vote shy of vetoing a historic health-care reform law on grounds that many conservative legal thinkers initially thought specious. Given how the conservative majority has comported itself with five votes in tow, there’s grounds for fearing the judicial branch will grow even more tyrannical unless its ambition is checked by Congress.
Regardless, Rothman and Lee have no constitutional argument. So they must instead appeal to norms and “the civic compact.” And yet, it is difficult to discern what is and is not contained within this figurative compact — and who precisely put Rothman, Lee, and their ideological bedfellows in charge of determining its contents. Last February, Lee voted against Donald Trump’s impeachment, which suggests that allowing a president to illegally withhold congressionally authorized appropriations — so as to extort a foreign government into creating legal problems for his domestic political rivals — poses no “constitutional harm toward this mode of government” in Lee’s book. Nor, of course, does Lee consider his own party’s refusal to grant Barack Obama’s Supreme Court nominee so much as a hearing in 2016 to have “set up a one-way ratchet” that delegitimized the court.
As for civic compacts: It’s fair to say that a nine-member Supreme Court is a well-established norm in U.S. politics. The court has existed in that form since 1869. And if Democrats actually did expand the court to award themselves a majority, that would represent an escalatory response to the GOP’s piecemeal judicial power grabs.
But if respect for precedent might be one component of a republic’s unwritten “compact,” it sure isn’t the only one. Another might be deference to popular will. A plurality of Americans voted against Donald Trump in 2016, and no Republican Senate Caucus has represented a majority of U.S. voters since 1998. If Mike Lee were principally concerned with preserving the legitimacy of the Supreme Court, he could have insisted that President Trump appoint moderate justices with no affiliation to conservative-movement institutions such as the Federalist Society, in light of his ambiguous democratic mandate.
Of course, Lee did not do this, because, like his colleagues, averting procedural hardball is not his primary concern on judicial matters; overseeing the establishment of a long-reigning Supreme Court majority that will protect the unborn from the impregnated’s autonomy — and safeguard the propertied from regulatory tyranny — is. Preserving popular faith in the judiciary’s legitimacy, and the sacrosanct nature of the nine-member court, is mostly just a means to that end. Which is an understandable position for Lee to take: If I believed abortion was genocide, and social democracy a weigh station on the road to serfdom, I too would care more about ensuring conservative control of the Supreme Court than about the downsides of defying the democratic will (by confirming far-right judges to the highest court of an increasingly center-left nation).
The reality that Republican critics of court packing ignore — but which their own ruthless pursuit of judicial supremacy testifies to — is that the nature of the Supreme Court has radically changed in the last quarter century. Ruth Bader Ginsburg was confirmed with 96 Senate votes in 1993; Antonin Scalia was confirmed with 98 in 1986. Since then, the parties have grown both more ideologically polarized and conscious of the stakes of Supreme Court control, while the Court itself has grown more aggressive in its assertions of fiat power. The Court today is a thoroughly political institution, one that has awarded itself the right to rewrite major health-care and voting-rights legislation. It is not reasonable to ask either party to ignore this fact, or to forfeit the opportunity to gain control of this vital power center just because a conservative justice happened to die while Barack Obama was president, or a liberal one did while Donald Trump was in office.
So, you can’t really blame Mike Lee for appealing to the sanctity of unwritten rules, while simultaneously helping Donald Trump lay waste to them. But you also can’t take him seriously when he hems and haws at his Democratic colleagues contemplating the possibility of exercising power in the same spirit that his own party does. After all, it was just four years ago that Republican senators John McCain, Ted Cruz, and Richard Burr all vowed to effectively shrink the Supreme Court by refusing to confirm any justice Hillary Clinton nominated over the ensuing four to eight years, while conservative commentators dutifully rationalized this stance as the minimum required for maintaining the court’s legitimacy.
As a broader institution, meanwhile, the Republican Party has embraced court packing itself on the state level. As Duke law professor Marin K. Levy shows in a new study, efforts to increase the size of state supreme courts have grown more prevalent in recent years, with GOP state legislatures leading the charge. In two instances, these efforts were successful. In Georgia in 2016, Republicans decided they’d had enough of their state supreme court’s Democratic majority, and empowered governor Nathan Deal to add two new justices to the body. In Arizona that same year, Republicans empowered governor Doug Ducey to add two new justices to its Supreme Court, a move that expanded that body’s conservative majority, ensuring that right-wing judges will be able to exercise some power over the politics of a rapidly diversifying and liberalizing state for years to come.
Republicans could argue that expanding a state supreme court — and expanding the federal one — are radically different things, and thus, that their divergent views on the propriety of each are rooted in neutral principles of just procedure, not political expediency.
But I really wish they wouldn’t bother.