Brett Kavanaugh moved one step closer to the United States Supreme Court on Friday.
Despite telling brazen lies in front of the Senate Judiciary Committee, and despite Christine Blasey Ford’s compelling testimony, Republicans on the committee voted in favor of advancing Kavanaugh’s nomination to the full Senate for a vote. Only a new FBI investigation into Ford’s allegations, limited in time to one week, now stands in the way of Donald Trump entrenching a hard-right conservative majority on the Supreme Court for a generation or more.
To be clear, such a majority on the court would be an utter disaster for women, for people of color, and for the poor. One upside of Kavanaugh’s raw and angry rant on Thursday — he referred to the Democrats on the panel as “you people,” a “disgrace,” and accused them of exacting “revenge on behalf of the Clintons” — is that it exposed the Supreme Court for what it is: a partisan on the political battlefield, not a disinterested defender of the Constitution.
So it’s past time for liberals and the left to consider court packing: When they next have control of the House, the Senate, and the White House, Democrats should add at least two new seats to the Supreme Court and then fill them, ideally, with left-wing, well-qualified women of color. They could even call it “court balancing.”
“Pack the courts as soon as we get the chance,” tweeted Indiana University law professor Ian Samuel, the co-host of the popular Supreme Court podcast “First Mondays,” on the the day Anthony Kennedy announced his retirement from the Supreme Court in June. “‘Pack the courts’ should be a phrase on par with ‘abolish ICE.’”
This might sound extreme, but it isn’t. The Constitution allows for Congress to decide the number of Supreme Court justices. “There is nothing magical about the number nine,” HuffPost’s Zach Carter observed in June. “The court was founded in 1789 with just six justices and has included as many as 10, from 1863 to 1866 — when a Republican legislature intentionally shrank the court size to seven justices to prevent President Andrew Johnson from making any appointments.”
“The idea of expanding the size of the Supreme Court will get traction if the Democrats take the White House and Congress in 2020,” constitutional scholar Erwin Chemerinsky, dean of the law school at University of California, Berkeley, told the Los Angeles Times in July. “It is the only way to keep there from being a very conservative Court for the next 10-20 years.”
I can hear the objections already, from timid liberals and outraged conservatives alike.
Isn’t court packing a tactic associated with authoritarian or dictatorial governments? Wouldn’t such a move undermine the Supreme Court’s legitimacy? Why go for the “nuclear option” of court packing when there are other less radical reforms on offer? And, of course, what’s to stop Republicans from doing the same when they’re back in charge?
Let’s deal with each of these in turn. First, the fact that the likes of Recep Tayyip Erdo?an and Viktor Orbán have packed the constitutional courts in their countries is irrelevant to the debate in the United States. “Court-packing is a tool,” argues Vox’s Dylan Matthews. “It can be used for authoritarian ends, or for democratic ones.” In 1863, for example, Abraham Lincoln added a 10th justice to the court in order to “further the federal war aims of preserving the Union and ending slavery.” Was that, morally or politically, the wrong thing for him to have done at that critical juncture in U.S. history?
Second, court packing would help, not hurt, the Supreme Court’s legitimacy. A hard-right court would be wildly out of sync with U.S. public opinion on a range of hot-button issues such as abortion, same-sex marriage, consumer rights, environmental regulations, gerrymandering, and campaign finance. Meanwhile, the appointment of Kavanaugh would mean the Supreme Court has four justices (John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh) appointed by presidents who lost the popular vote; two justices (Clarence Thomas and Kavanaugh) accused of sexual misconduct and misleading the Senate; and one justice (Gorsuch) who effectively stole his seat from President Barack Obama’s nominee, Merrick Garland. How’s that for a crisis of legitimacy?
Third, how can you call court packing a “nuclear option” when six U.S. presidents — including Thomas Jefferson, Lincoln, and Trump’s own hero Andrew Jackson — signed off on it? In addition, Franklin Roosevelt may have tried and failed to pack a reactionary Supreme Court in 1937, but, as HuffPost’s Carter reminds us, “even after FDR retreated from his proposal amid a profound outcry from Southern Democrats, the justices sitting on the Court got his message and began issuing more sympathetic rulings on the New Deal.”
Critics of court packing on the left have suggested that there are less radical alternatives to the Supreme Court’s legitimacy crisis. Why not, they say, bring in term limits for the nine justices? Or impeach Kavanaugh and even Thomas after the midterms?
Term limits, though, require a constitutional amendment, while impeaching a Supreme Court justice requires a two-thirds supermajority in the Senate. Adding new justices, however? That only requires a simple majority in Congress. “People tend to describe it as a radical proposal but it’s no more difficult than passing any other bill,” Samuel told me over the phone, when I reached him for comment on the Kavanaugh debacle on Friday morning. “You can do it, and it’s easy.”
Fourth, what about the possibility of escalation and retaliation? Why wouldn’t a Republican president in, say, 2024 cancel out the court-packing of his or her Democratic predecessor by adding more conservative justices to the Court? Samuel called this the “standard game theory objection, or tit for tat.” However, he pointed out, “that’s not what has happened throughout history, when the size of the court has been adjusted.”
Plus, suggesting Republicans will retaliate to Democratic court-packing by doing the same is absurd: the GOP has already packed the Supreme Court. In 2016, Republicans in Congress prevented a Democratic president who won two terms, with two clear majorities, from filling a Supreme Court vacancy; in doing so, the GOP deliberately reduced the size of the Court to eight justices for more than nine months. Senior Republicans even suggested they’d restrict the Court to eight justices for the entirety of a Hillary Clinton presidency. Then, within three months of Trump coming to office, Republicans confirmed the ultra-conservative Neil Gorsuch as the 112th Supreme Court justice.
To suggest Democrats would be emboldening or provoking Republicans, therefore, gets this whole dynamic the wrong way around. According to Samuel, “It’s the equivalent of saying, ‘If we invade Normandy, the Nazis will shoot at us.’”
Court-packing has to be near the top of a progressive agenda for 2020. Democrats will have to learn to “connect court-packing to popular progressive programs,” Samuel told me. For example, will “Medicare for All” ever be a possibility if there’s a decades-long conservative majority on the highest court in the land? Lest we forget, a Republican-led Supreme Court, without Kavanaugh and Gorsuch, was only a single vote away from abolishing Obamacare in 2012. How about fixing gerrymandering or voter suppression? Will progressives even manage to get elected to the White House or Congress if an emboldened and unchecked conservative-dominated Supreme Court ratchets up its defense of such practices, thereby bolstering the Republican Party’s electoral prospects?
Forget procedures; forget norms. There is too much at stake. Playing by the old rules while the Republicans tear them up won’t cut it. Deferring to a court composed of conservative ideologues masquerading as impartial judges, to an explicitly political yet unelected body bent on making sweeping, reactionary, unpopular changes to the United States, is a betrayal of liberal, democratic, and progressive values.
There is a perfectly legal and viable solution to all this: Pack the Supreme Court. Pack it as soon as possible.
Correction: September 30, 2018
The spelling of professor Ian Samuel’s last name has been corrected. It is Samuel, not Samuels.