Court-Packing for Democracy

If Democrats win, the Court has given them little choice.

Let’s say that Democrats wind up getting solid majorities in the House and Senate in the 2028 elections while also electing a Democratic president.

What are they going to do about the courts?

(I’ll leave the argument to others that the current Supreme Court majority are a bunch of lawless partisan hacks. But they are.)

For the Supreme Court, there are basically three options.

The first and probably best option is to “pack” it. In other words: Add more Justices. The Constitution doesn’t specify how large the Supreme Court should be, so it’s been set by legislation, and it took a long time for Congress to settle on nine. All it would take to add another one or two or ten Justices would be Congress passing something and the president signing it. Then nominate and confirm the new Justices, and the GOP majority on the Court is gone.

The advantage of this is how easy it is. Yes, it would require a nuke of sorts in the Senate – as it is now, the bill could be defeated by a filibuster unless Democrats could find 60 votes, and there’s not going to be any Republican help on it. However, that’s true of most of the Democrats’ democracy agenda, from restoring the Voting Rights Act to statutory DC statehood. My guess is that as long as there are, say, at least 53 Democrats in the Senate they’ll have the simple majority needed to carve out a new exception to the filibuster.

The downside of court-packing is that it creates an obvious arms race: Republicans would retaliate as soon as they had the chance by doing the exact same thing. As time passes, the Court would become unwieldy, and it’s reputation as simply a partisan superlegislature would grow as well. That’s better for Democrats than just accepting the current partisan superlegislature! But it’s not great.

Option two is some sort of long-term solution that would actually tend to reduce Court partisanship, or at least tame it a little.. I’ve seen a number of suggestions; some could be done by simple legislation, while others would require a Constitutional amendment.

The advantage of this approach is that it would strengthen democracy if people could believe that the Court is reasonably fair. That’s not going to be the case with a simple court-packing scheme of adding Justices until the president’s party has a majority.

But I’m not going to bother going through the various ideas people have had because the main disadvantage of this plan is that it’s unlikely to happen, at least not in the short run. I doubt that Democrats will bother doing it on a party-line vote. Adding Justices is a lot simpler and more certain, after all. And to the extent that changing the Court on a party-line vote is perceived to risk public opinion blowback, it really doesn’t matter whether the change tries to be fair or not. Republicans and those who want to follow norms whether they promote or detract from democracy are going to oppose reform regardless of what it consists of.

Which gets to the other truth about this: Republicans are not going to seek or accept a “fair” compromise. Take, for example, the proposal to change Supreme Court positions from lifetime appointments to staggered 18-year terms. It has a lot going for it! It would guarantee every president two nominations. It would presumably end strategic retirements – but also end the current need to nominate very young lawyers to the Court. Regular rotation might even reduce the perceived need to find fanatic partisans, since it would tend to lower the stakes of each selection.

But it doesn’t matter; there’s no chance that any Republican who ever wants to get a party nomination again would vote for a compromise deal, even if refusing to cut a deal would make an even more partisan Court aligned against them.

So while it’s possible the Democrats in 2029 (if they have the votes) could do something more subtle than simple Court-packing, the odds are that will be where they end up.

There is a third option, which they could do along with either of the first two or just by itself: Jurisdiction-stripping. As Norm Ornstein explains, the Constitution allows Congress to limit what the Court can even consider. Republicans have pushed to stripped juristiction from the Court when it was ruling against them, but never did it; Democrats could do it now.

My general feeling is that if they’re going to Court-pack, adding stripped jurisdiction to it would be redundant, and just as easily overturned the next time Republicans took over.

But that doesn’t mean that it’s not worth talking about. It’s possible that a small Democratic majority might include some skittish Senators who would go for that (and the filibuster democracy exception it would require) but not adding Justices.

And indeed: One thing that Democrats can do now is to pound away at the idea that what’s been happening in the Supreme Court these days is not normal at all; that it’s actually part of the attack on US democracy; and that fixing it is necessary to restore a working republic.

One more thing. Supreme Court reform is the top priority. But the lower courts need work, too. Specifically, it used to be the case that new judges were added to keep up with the population: Circuit judges were added, for example, in 1954, 1961, 1966, 1968, 1978, 1980, 1984, and 1990. And then, over the last 36 years, nothing. The culprit is easy: The filibuster, which until the 1990s was only used for major bills, started spreading to any important bill and then, in 2009, to everything, important or not. (Yes, the key dates for filibuster expansion were 1993 and 2009; I’ll let readers puzzle out which party was in the minority in those years).

That should change, and Democrats should change it if they have the votes and they’re carving out a filibuster exemption for a democracy agenda anyway. Add more circuit and district court judges. And, hell, be fair about it; stretch out the expansion over several years.

Look: I don’t like any of this. I’d rather leave the Court alone or perhaps make consensus reforms such as the proposed 18-year staggered terms. And I’m one who will defend judicial review – and disagree with those who claim that unelected judges are inherently undemocratic.

But it’s one thing for a branch to be chosen indirectly by elected presidents and Senators; it’s another for George H.W. Bush and Senators elected in the 1980s to have as much clout on the current Court (via Justice Thomas) as Joe Biden and the Senators elected in 2016-2020 (through Justice Jackson). Meanwhile, we have an unbroken string of GOP-majority Supreme Courts that goes back over 50 years, even though Democrats and Republicans have won more or less equally over that span. A GOP majority that now appears to be self-perpetuating regardless of what happens in elections – unless there’s some sort of intervention to change the procedures with which Justices are selected.

And even then, I’d be reluctant to support majority-imposed reforms if the current Court had drawn back from anti-democratic substantive and procedural extremism on behalf, over and over again, of the Republican Party. They have not.

The truth is that Democrats cannot expect anything they do in 2029 to survive, no matter how large their majorities might be in 2029 or how seemingly solid the Constitutional case for their actions might be, as long as the current GOP majority runs the high court. And so they have little choice but to do something about it, if the voters give them the ability to do so. Court-packing ain’t great, but it sure beats the alternative.