To Pack Or Not To Pack
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Four of the nine current Supreme Court justices have been named by presidents who took office despite losing the popular vote.
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Two of those four justices were named by a president whose victory was clinched when the Supreme Court ordered a halt to vote counting.
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Another one of the four was nominated only after Senate Republicans refused to allow President Barack Obama to fill a Supreme Court vacancy.
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The resulting conservative court majority has proved strongly activist, with justices willing to substitute their own judgments for those of democratically elected legislators. As my colleague Jamelle Bouie recently wrote, “Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering.”
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In that same column, Jamelle argued that Democrats should respond by increasing the size of the court — to make it less radical — whenever they next have the chance. On the latest episode of “The Argument” podcast, Jamelle joined Ross Douthat and me, and the three of us debated that idea.
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I’ll confess to being deeply torn on this issue. I don’t like the idea of court packing, which I think could lead to never-ending escalation between the parties and the potential breakdown of the judicial system. But I also find the status quo unacceptable: A court majority of dubious democratic legitimacy that sometimes acts as a kind of partisan super legislature. It’s the opposite of the judicial humility that Chief Justice Roberts holds up as his ideal.
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And remember: Every 5-4 decision that breaks along partisan lines likely would have gone the other way if Senate Republicans hadn’t stolen a seat from Obama.
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If nothing else, I do think the country has reached the point where once-unthinkable solutions are worth debating. The current court is forcing the issue.
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Below, I’m including links to some other pieces, beyond Jamelle’s, that have helped me grapple with the topic.
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For more … |
Jacob Hale Russell, an assistant law professor at Rutgers, in Time magazine: “The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. … The right size is much, much bigger. Three times its current size, or 27, is a good place to start.”
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David Faris, in The Washington Post: “While unprecedented, court packing would be a clearly constitutional move by an elected majority. After all, previous presidents and Congresses have changed the size of the court.”
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The Guardian’s Moira Donegan: “It is time for the Democrats to drop the pretense that the judiciary is apolitical, and admit that no progressive agenda can be enacted or maintained without a drastic overhaul of the federal judiciary. … Many federal judges are thoughtful, fair-minded people who take their mandate to faithfully interpret the law seriously. But many others are all but open servants to the political agenda of the Republican Party, issuing opinions that distort the law in near-unrecognizable ways.”
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Vox’s Dylan Matthews: Packing the court could lead to “more games of constitutional hardball and enables a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him. That, roughly, is what has happened in Poland, Hungary, Honduras, Venezuela, and Turkey. It could happen here too.”
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Julian Zelizer, in an Op-Ed in The Times: “The political risks for such a move by Democrats would be enormous, and potentially long-lasting. … If liberals want to change the direction of the courts, they should do more to replicate the kind of long-term projects their opponents have undertaken since the 1980s to nurture judicial talent and create a deep pool for future appointments.”
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Steven Levitsky and Daniel Ziblatt, in their book “How Democracies Die”: “Democratic institutions depend crucially on the willingness of governing parties to defend them — even against their own leaders. The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.”
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