Photo-Illustration: Intelligencer; Photo: Andrew Harrer/Bloomberg via Getty Images
the national interest

Democrats Must Reform the Supreme Court to Save It

Republicans won control of the Court playing by the rules. The rules are bad.

Photo-Illustration: Intelligencer; Photo: Andrew Harrer/Bloomberg via Getty Images

Conservatives met the leak of the Dobbs draft with a paranoid suspicion — it was too good to be true; liberals must have exposed the incipient ruling in a plot to undermine it — that has given way to a giddiness bordering on ecstasy. It is not merely that they have prevailed in their half-century-long quest to overturn Roe. It’s that the boldness of the decision heralds more such victories to come. The Supreme Court is on a right-wing bender, delivering conservative victories across the spectrum of cultural and partisan conflict. They have crippled the cause of gun regulation, blessed the power of white southern majorities to dominate their Black minorities, opened the door for school prayer after six decades. It has begun to dismantle the regulatory state in a decision attacking the Environmental Protection Agency so aggressively that dissenting justice Elena Kagan openly accused the majority of grasping for whatever rationale would advance its policy agenda.

Whatever qualms John Roberts has expressed about flexing the right’s legal muscle have been consigned to irrelevance; Roberts resides in the powerless liberal wing now, watching helplessly as the majority steamrolls decades of jurisprudence. The sweetest thing is that these victories are only the beginning of a line of conquest that stretches out far into the future given that conservative are unlikely to relinquish their control for many years and possibly decades. What American government will look like after the Court has stacked new precedent upon new precedent is something current observers can only dimly perceive.

At some point, the Democratic Party is going to have to decide whether to accept this state of affairs or whether to work within the constitutional system to change it. The path of least resistance is to rage in futility without organizing any plausible reform they can implement the next time they have control of government. In the absence of such a plan, the Democrats are drifting toward a future in which they may have no future.

Control of the courts is a great game that has played out between the two parties and which the right has decisively won. It has won so decisively, in fact, that Democrats have little reason to continue playing it.

The rules of the game place an enormous amount of power in the hands of a small number of lawyer-politicians who can simultaneously navigate elite legal institutions while signaling their ideological reliability to party insiders. The justices may be performing different roles for their coalition than elected officials, but they operate in the same network and share political objectives.

Put differently, imagine Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Amy Coney Barrett switched jobs with Ted Cruz, Chuck Grassley, Mike Lee, Tom Cotton and Joni Ernst. Would either the Court or the Senate change in any noticeable way?

Many liberals have taken to describing the Court’s current makeup as the result of one or more “stolen” seats. This description is misleading. The right won its generational control of the Courts according to the rules of the game. The problem is the rules keep changing, and the rules are stupid.

The two parties compete for control of the Court, which is determined by two overriding factors: whose appointees die in office when and whose jurists strategically time their retirements more effectively.

Because Republican justices have been both less susceptible to illness in their old age and more committed to their party’s legal cause, their party has won the game. Democrats have won five of the past eight presidential elections, but Republicans have appointed six of the nine justices and 16 of the past 20.

Like many other institutions in American politics, the Supreme Court nominating system worked well enough in an era of weak, ideologically overlapping parties bound by strong norms of cooperation and has either ceased to function in a polarized era or no longer functions anything as it used to.

Even if one adopts the Republican view of how the system for confirming justices has changed, there’s no doubt it bears little resemblance to the old one. Republican nominees now go through an extremely rigorous vetting system that all but ensures they will produce rulings favorable to the conservative movement with near-perfect reliability. Meanwhile, both parties now assume they need to hold the presidency and the Senate in order to confirm a Supreme Court justice, a far cry from the not-so-distant past when nominees deemed to be within their own party’s mainstream would win more than 90 Senate votes.

Nobody consciously designed a system that would make vast swaths of American law hinge on a small number of elderly jurists’ life spans and willingness to strategically retire. Nor would anybody design a system like this.

Aware of the moral precarity of their precious legal majority, conservatives are already acting to sacralize it. They have bitterly depicted any criticism of the process as tantamount to insurrection. “The moment the Supreme Court started making decisions that a lot of political, cultural, and legal elites didn’t like, they didn’t merely disagree; they contended that the Court was no longer legitimate,” writes National Review’s Jim Geraghty, “If every time the party you oppose comes into power you call it illegitimate, or if every time those you oppose assert their authority you decry their actions as illegitimate, you don’t actually believe in democracy. You only believe in democracy as long as your side wins.” (It is worth noting that Republicans have had a majority of Supreme Court appointees since 1970; Democrats began questioning the fairness of the process only recently.)

These Republican defenses of the Court serve a double purpose of rationalizing their party’s growing authoritarian ranks. “How is claiming that the Supreme Court is illegitimate less corrosive to our democracy than claiming that a presidential election was illegitimate?” demands NR’s Kevin Williamson. See, Republicans may question the legitimacy of Joe Biden’s election, but Democrats question the legitimacy of Brett Kavanaugh’s Court, so both sides do it.

The Republicans’ overturning of Roe, their greatest legal triumph so far, importantly required elected officials to repeatedly assure the public that it wouldn’t happen. “It’s not on the ballot … I don’t think so. There’s nothing happening there,” Trump said in 2020. “Well, I don’t think anybody is going to overturn Roe v. Wade,” Orrin Hatch scoffed. “It’s a settled opinion that, yes, a lot of conservatives would like to see it overturned, but, actually, he’s got bigger fish to fry. So I doubt seriously that that’s really a legitimate concern.” Aaron Blake compiled a lengthy list of Republican officials offering even more explicit assurances.

Now that exactly this outcome has transpired, the proper response to their success is not “The people have spoken.” It’s “Rules are rules.”

Well, fine. But the rules also say the Court can be changed.

There are two ways to address the Court’s dysfunctional system. One is for Democrats to “pack” the Court by first expanding the number of justices and then filling the newly vacant seats with Democrats in order to flip control.

Packing the Supreme Court has had a bad odor since Franklin Roosevelt attempted it in 1937 and was rebuked by members of his own party. Roosevelt was not the first president who sought to change the number of seats on the Supreme Court. The number is not set by the Constitution and changed several times during the 19th century, more than once in order to alter its ideological composition.

The backlash against Roosevelt hardened the norm of maintaining nine members. Republicans have not hesitated to pack State Supreme Courts, introducing measures to do so in several states and successfully implementing packing schemes in Arizona and Georgia.

The other option is to reform the Court. Unlike packing the Court, reforming the Court would not hand control to liberals. Depending on the type of reform implemented, it would instead attempt to make the Court less partisan. One reform plan would impose 18-year terms on every justice and create two openings on the Court for every four-year presidential term. This would eliminate one of the most peculiar features of the Supreme Court system — lifetime tenure for justices is not found in either State Supreme Courts or in high courts in other democracies. It would, over time, align the Court’s partisan composition with the presidential votes, making anomalies such as the GOP’s disproportionate advantage in judicial appointments impossible.

A more dramatic proposal, which Pete Buttigieg endorsed during the 2020 primary, would be to expand the Court to 15 members and give each party five nominees with the remaining five to be chosen jointly by both sides.

Republicans naturally oppose both packing the Court and reforming it and have generally conflated the two as “packing.” But these measures have different implications and theories. Court-packing fellows the theory that Democrats are entitled to violate norms and take more Court seats since Republicans did the same (by refusing to even consider any nominee proposed by Barack Obama to replace Antonin Scalia on the supposed ground that a vacancy should not be filled in an election year, then disregarding that pretext when Ruth Bader Ginsburg died). Reforming the Court is designed to reduce its partisanship and make it harder for either party to gain a permanent advantage.

Since Republicans hold an apparently durable advantage, they are loath to consider either option or even to concede that there is any difference between packing the Court and reforming it.

Pressured by progressive activists to endorse court-packing, President Biden promised during the campaign to appoint a commission to study the matter. His panel, composed of legal elites from left and right, predictably failed to reach any consensus solutions. Still, the 294-page report performed a valuable service by drawing out arguments for and against the various proposals. What it revealed, in particular, is the hollowness of the case for the status quo.

Reform opponents defined the problem facing the Court as the perception that it is partisan. This led them again and again into a logical circle: Any solution that acknowledged that justices are the subject of partisan contestation would by definition worsen the problem. The skeptics, according to the report, oppose creating partisan balance because “an explicit requirement that Justices be affiliated with particular parties would constrain the pool of potential nominees and reinforce the notion that Justices are partisan actors.” The idea that the pool of Justices is not already constrained by partisanship is obviously a pure fantasy, yet the case for preserving the Court apparently rests on sustaining this delusion.

The reform skeptics also oppose term limits because “introducing term limits might reinforce the erroneous message that appointments to the Supreme Court are the spoils of politics or the property of a particular President or party.” This objection, again, is completely detached from a reality in which presidential candidates routinely campaign on promises to appoint justices who advance their party’s legal philosophy.

The practical problem with altering the Court is that there is a mismatch between the remedies and the ease of achieving them. Packing the Court would be relatively straightforward: All it would require is a majority in Congress and the president to sign a law expanding the number of seats and then to fill the new vacancies. Reforming the Court would require more elaborate changes. Lifetime tenure is fixed in the Constitution, requiring an amendment to change.

Paradoxically, the drastic step of court-packing — which would likely set off, or at least intensify, a political crisis — is mechanically easy, while the modest step of reforming the Court’s strangest feature is mechanically hard.

Still, if Democrats could credibly threaten to pack the court, they could gain leverage to bring Republicans to the negotiating table for some bipartisan reform. Theoretically, they could start by packing the Court, which would give their party a majority, at which point Republicans would have a strong incentive to negotiate a deal that would split control of the Court. Republicans have gained their current legal advantage by playing a very long game. The Democrats’ long game is going to have to involve reforming the Court’s structure.

At minimum, a credible partywide commitment to undertake either of these plans would provide some brake on the Court’s increasingly reckless instincts. At the moment, the five most right-wing justices are behaving hardly any differently than if the Court were controlled by five Ted Cruzes. The legal wing of the conservative movement is intoxicated with power and heedless of John Roberts’s cautions against exercising that power recklessly.

Legal elites worry that implementing even modest reforms will blow up the veneer of nonpartisanship that the Court’s power requires. They should be more concerned the Court’s majority is doing this itself.

Democrats Must Reform the Supreme Court to Save It