How to Fix the Conservative Hijacking of the Supreme Court
As of February 12, 2016, Barack Obama was in the White House, reality television star Donald Trump had just shocked the world by winning an actual Republican presidential primary, and the nine justices of the Supreme Court happened to be a relatively well-balanced bunch. John Roberts, the chief justice, helmed a four-justice conservative bloc with Clarence Thomas, Samuel Alito, and Antonin Scalia. Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor comprised a four-justice liberal bloc. Anthony Kennedy, a Reagan appointee with intermittent liberal sympathies, acted as the group’s occasional tie-breaking swing vote.
Scalia’s unexpected death the next morning, however, threatened to upend this delicate power dynamic. Overnight, President Obama found himself on the precipice of establishing the strongest liberal majority since the civil rights-era Warren Court some 50 years earlier—an accomplishment that would not be lost on a former constitutional law professor.
From there, things did not proceed as he hoped. Hours after Scalia’s death, Senate majority leader Mitch McConnell declared that his Republican-controlled chamber would not vote on any nominee until after the 2016 election—an unprecedented escalation of Supreme Court politicking. Thereafter, Trump began sprinkling his wall-building pledges with promises to still-wary Republican voters that he’d protect the open seat from falling into liberal clutches. “If Hillary Clinton gets to put hard-leaning left judges on the Supreme Court, number one, your Second Amendment will be gone,” he warned at a rally in August. “Our country will never ever be the same.” In early 2017, he made good on that promise by tapping conservative appellate judge Neil Gorusch to take Scalia’s place, and Senate confirmed Gorsuch, 54-45. Later, McConnell would later call this stunt “the most consequential thing I’ve ever done.”
Then, in summer 2018, Kennedy announced his retirement, offering Trump the sudden opportunity to create a solid conservative majority. His choice was D.C. appellate judge Brett Kavanaugh, a longtime GOP operative who had a troubling, complicated relationship with the truth well before Dr. Christine Blasey Ford alleged that Kavanaugh sexually assaulted her when the two were high school students. Kavanaugh responded by begging his fellow Republicans for help and publicly excoriating Democrats who would dare question his right to the job to which he felt entitled. In the end, he was confirmed, 50-48, the closest margin in Senate history.
Over the past three years, thanks to this combination of shameless procedural shenanigans and a cynical embrace of judicial partisanship, the Republican Party has stocked the nation’s highest court—a purportedly neutral adjudicatory body—with justices empowered to spend the next few decades advancing conservative ideology. This is the hard-earned result of decades of careful planning by the Federalist Society, a well-financed organization of conservative judges and lawyers who sought to commandeer the federal judiciary on behalf of their agenda. And since the Constitution bestows life tenure on Supreme Court justices, unless Gorsuch or Kavanaugh were to murder a litigant during oral argument, there is no easy mechanism by which Democrats could unseat either man in order to counteract the injustices of their respective confirmations.
What Democrats could do, however, is dilute the practical impact of Gorsuch’s and Kavanaugh’s presence on the bench—by adding a few more seats to it. Such proposals, which have become popular among progressives alarmed at the right-wing’s successful efforts to hijack the federal judiciary, are known as “court-packing.”
Article III of the Constitution provides for the establishment of “one supreme Court,” but says nothing more about its size or composition. The framers left those questions to Congress, which in 1789 created a Court of six judges: five associates and one chief. But the politicking over this arrangement began almost immediately. In 1801, outgoing president John Adams and a lame-duck Congress passed a law eliminating one seat in order to prevent incoming president Thomas Jefferson from filling it. The new legislature promptly repealed the statute, and Jefferson appointed a sixth justice shortly thereafter.
During the 19th century, Congress added a new Supreme Court seat for each new appeals court it created to resolve the many disputes of a growing, litigious nation. For a brief period beginning in 1863, this system culminated with a ten-man Court. Three years later, Congress instituted a hard cap of seven, and then in 1869 expanded the quota to nine, where it has remained ever since. There is nothing compulsory about the number nine, which is (and has always been) the arbitrary byproduct of a messy political process—and, to a certain degree, McConnell disposed of any solemnity regarding it in the modern era by unilaterally reducing the number of justices to eight for more than a year. Changing the number requires only a legislature willing to pass a bill, and a president willing to sign it.
This almost happened during the Great Depression, when several more ambitious elements of President Franklin Roosevelt’s New Deal agenda—stiffening federal regulation of the poultry industry and extending foreclosure protections to bankrupt farmers, among others—met their demise in an uncooperative Supreme Court. Frustrated, Roosevelt unveiled a fix that can only be described as “trolling” in its precision: The Judicial Procedures Reform Bill of 1937 would have allowed him to appoint one new justice for each justice older than 70 years and 6 months, up to a maximum of six new justices. In a wild coincidence, at that moment, six justices were beyond the designated age. Cobbling together a five-justice majority is hard. Cobbling together a coalition of eight justices—six of whom you just appointed—is presumably not.
Most of the public, perhaps wary of such transparent gamesmanship, opposed the measure, and the president took heavy criticism from the press, sitting Supreme Court justices, and even lawmakers within his own party. But with the prospect of a Democratic civil war looming, associate justice Owen Roberts had a surprising and fortuitously-timed jurisprudential change of heart: In West Coast Hotel Company v. Parrish, he voted to uphold—by a 5-4 margin—a sweeping minimum wage law most observers expected him to oppose.
Today, law students learn about this defection as “the switch in time that saved nine,” in which Roberts savvily protected the Court’s decisions from political influence, sacrificing a battle to win a war. This principled-hero tale probably overstates the truth: Again, Roosevelt’s court-packing bill wasn’t popular, and Roberts confidants insist he had made up his mind before its introduction. Still, the president got his way in Parrish and in every consequential New Deal case after that. When the court-packing proposal failed, he did not bring it up again.
A court-packing proposal—like any piece of legislation unrelated to the federal budget reconciliation process—would be subject to the Senate’s filibuster rule, which requires that three-fifths of its members consent to end debate on a bill in order to bring it before the Senate for a substantive vote. This rule is the most significant impediment to expanding the Supreme Court, because even if Democrats were to win the White House and both chambers of Congress in 2020, a 60-senator filibuster-proof supermajority is well beyond either party’s reach.
The filibuster is not law, though; it is a Senate tradition, and a fragile one at that. When Democrats threatened to scuttle Gorsuch's candidacy, Republicans exercised the so-called “nuclear option” for Supreme Court nominations, eliminating the filibuster altogether in order to confirm him. If Democrats were to take the Senate in 2020, they could do away with the filibuster for legislation by simple majority, and pass a court-packing bill by the same margin.
This would not be an inconsequential decision. Some Democratic senators have expressed trepidation about making it, arguing that something which helps their agenda now may prove disastrous when they are powerless to stop a future GOP majority from, say, at last successfully repealing the Affordable Care Act. This respect for political mutually assured destruction is why majorities of both parties—including McConnell’s, and despite the president’s fondest wishes—have always refused to go nuclear to date. Eliminating the filibuster would, however, be easier than convincing GOP senators to back a Court reform bill, giving away the conservative movement’s hard-earned Supreme Court majority as Tucker Carlson howls in protest.
Some Democratic presidential candidates, like Bernie Sanders and Cory Booker (a Yale Law grad), worry attempts to pack the Court would kick-start a partisan arms race. “Once the process of packing the Court starts,” Sanders told the Washington Post, “it could continue with each political party adding more judges when they have the power to do so.” Other 2020 hopefuls, though, including former law professor Elizabeth Warren and former state attorney general Kamala Harris, have expressed cautious optimism about the idea. With the country “on the verge of a crisis of confidence” in the Court, Harris told Politico, “everything is on the table.”
Beto O’Rourke and Pete Buttigieg have endorsed similar proposals for a 15-justice Supreme Court: ten confirmed by the usual advice-and-consent process, and five more who may be seated only by unanimous consent of the other ten justices. This is a nice idea that would face some formidable practical hurdles: Since Article III charges the president with selecting nominees and the Senate with confirming them, shifting those responsibilities to other people—including to members of the Court itself!—might not pass constitutional muster.
Other would-be reformers have proposed instituting term limits; “life tenure,” after all, means a different thing in 2019 than it did in 1789, when everyone who got pneumonia ended up dying two weeks later. Today, decades of jurisprudence hang in the balance with each new Court vacancy, so the party in power has an overpowering incentive to do whatever it must to get its nominee across the finish line. Limiting each justice to a certain period might lower the stakes.
This might seem like a less drastic solution than adding seats to the Supreme Court, but it might be more difficult to enact into law: Since Article III specifies that justices serve for life, imposing straight term limits would probably necessitate a constitutional amendment. In 2017, a coalition of law professors proposed to skirt this requirement via a statute that would allocate to each president a pair of every-other-year nominations, and simultaneously relegate justices to “senior status” after 18 years of service. Others have suggested rotating federal appeals court judges on and off the Court at similarly regular intervals. (Justices are guaranteed life tenure, proponents reason, but perhaps not necessarily life tenure on the Supreme Court.)
These are certainly creative workarounds, by which I mean they would be subject to immediate and vociferous legal challenges if enacted into law. Ideas like these also raise the distinct possibility that the nine justices within the Court’s current structure one day get to rule on whether the Constitution permits Congress to bless them with a new, rotating cast of coworkers.
Not every matter that comes before the Court is a fight to the jurisprudential death, and the justices resolve many of them by a tidy 9-0 margin and with little fanfare. Yet the list of potential 5-4 cases on the horizon includes some very important ones in which Gorsuch and Kavanaugh’s presence on the Court might decide the outcome. Six years after five justices voted to uphold the Affordable Care Act, a veritable conveyor belt of new lawsuits is slowly working its way through the federal court system. Before a more conservative panel, the law which provides health insurance to tens of millions of Americans might not survive its next challenge. And Democrats should not rule out using their power to fix this for the sake of a tradition their opponents long ago abandoned.
From its historic blockade of Obama-era judicial appointees to its theft of the Scalia seat to its elimination of the filibuster, the Republican Party owes much of its recent success to cheerfully not giving a shit about abiding by Washington’s relics of collegiality. But it is also true that Republicans would probably view a retaliatory court-packing bill as an unwarranted attack on the rule of law, and respond in kind next time they had the chance. (They believe, after all, that McConnell was entirely justified in holding Scalia’s seat open.) The concern among court-packing skeptics is that Democrats, seeing this as another escalation, would do the same, and then in a few years, all 891 Supreme Court justices have to cram into a high school gymnasium just to get everyone in the same room, and the institution becomes a farcical laughingstock that no one really takes seriously. But if the public already sees the post-Gorsuch and post-Kavanaugh Court as a collection of politicians who wear black robes to work, commissioning a few more might not signal the death of the republic as we know it.
A conservative Court means that state legislatures intent on gerrymandering districts and enacting draconian voter suppression regimes know that if they have to defend their handiwork in Washington, they’ll do so before a more sympathetic audience. Federal workplace protections for gay and trans Americans are suddenly in danger of disappearing; so are laws that preserve the power of public employees to form robust labor unions. One of the major reasons conservatives began working diligently to stack the bench is an intergenerational obsession with rolling back abortion rights. Kennedy was a reliable defender of the right to choose; with Kavanaugh in his place, Roe v. Wade will probably be dead-letter law within a few years.
The Supreme Court will also be the conservative movement’s last line of defense against the progressive, ambitious policies like Medicare for All, a Green New Deal, and others which may soon end up before it. It is no coincidence that renewed talk of court-packing is arising in another Gilded-Age era in which a new set of New Deal-style proposals are gathering steam—and facing opposition from modern wealthy elites. Even if Democrats were to take the White House and the Senate in 2020, earning a popular mandate to revolutionize health care in America and spare the planet from human-induced heat death, a conservative Court would put every legislative effort to solve these seemingly-intractable problems in an immediate, permanent state of legal jeopardy.
Democrats clinging to hollowed-out institutions for the sake of hollowed-out institutions are choosing to kneecap themselves. This result could be disastrous. But it is not inevitable. The questions are whether Democrats can earn the opportunity to make a change—and, should the time come, whether they have the political courage to take advantage of it.
