With the prospect looming of a Supreme Court dominated by Trump-appointed right-wing judges into the foreseeable future, an idea for a possible counterstroke has begun percolating among progressive political analysts and legal theorists:
Expand the court from the current nine justices to provide for a more balanced, if not distinctly liberal, bench.
“The idea of expanding the size of the Supreme Court will get traction IF the Democrats take the White House and Congress in 2020,” Erwin Chemerinsky, dean of the UC Berkeley law school and a constitutional scholar, told me by email. “It is the only way to keep there from being a very conservative Court for the next 10-20 years.”
The members of the conservative bloc on the court are spring chickens, as Supreme Court justices go. Clarence Thomas is 70, Chief Justice John Roberts 63, Samuel Alito 68 and Neil Gorsuch, the first Trump appointee, only 50. It’s a safe bet that the replacement for Anthony Kennedy, who just announced his retirement at the age of 81, will be in his or her 50s or possibly younger.
Although Sonia Sotomayor and Elena Kagan, two of the four reliably liberal justices, are 64 and 58, the two other liberals, Ruth Bader Ginsburg and Stephen Breyer, are 85 and 79. If Trump remains president past 2020, his opportunity to chisel a conservative supermajority into the court may be considerable.
“This is something that warrants serious consideration after 2020 if Democrats take the presidency and Congress,” Chemerinsky says.
The urgency is only greater because the court appears to be moving well to the right of America in general. Conservatives are thirsting for the court to overturn Roe vs. Wade, the 1973 decision that legalized abortion nationwide, even though opinion polls indicate that a majority of Americans want the ruling preserved: A poll released Friday by the Kaiser Family Foundation found that two-thirds of respondents favored keeping the ruling in place.
The court on Thursday eviscerated public employee union rights even though signs of a clamor for such a ruling were virtually nonexistent. And in a string of other decisions, the Roberts Court has expanded corporate influence in electoral politics despite signs that the influence of money in politics has led to government policies exacerbating economic inequality.
With Kennedy’s retirement, some of his own legacy will disappear, constitutional expert Garrett Epps wrote in the Atlantic. “The Court’s progress on LGBT rights will almost certainly come to an end; its faint interest in protecting the political process from political gerrymandering will also disappear. The Casey precedent will fall, if not in the coming term, then the next, or the one after that.” In the 1992 Planned Parenthood of Southeastern Pennsylvania vs. Casey, Kennedy, Sandra Day O’Connor and David Souter reaffirmed the Roe vs. Wade precedent.
A similar mismatch in the 1930s between the court’s hostility to the New Deal and the public’s desire for government action to combat the Great Depression provoked the last great crisis in the court’s credibility. A further shift to the right today could produce the same condition.
Yet as Chemerinsky observes, the political conditions have to be ripe for a court expansion to occur: put simply, Democratic control of both chambers of Congress and the White House.
Though the Supreme Court is established by Article III of the U.S. Constitution, the document leaves the size of that bench to Congress. There’s nothing special about a court of nine justices. In accordance with successive acts of Congress, the court had six members from 1789 to 1807, seven until 1837, nine from then to 1863, 10 from 1863 to 1866, and seven from then until the current strength was enacted into law in 1869.
Chemerinsky warns that a larger court might not in itself be a safeguard against narrow ideological splits — after all, a 7-6 or 8-7 majority is just as likely as the more recent 5-4 divisions in which conservative ascendance was implemented.
But it’s also true that a larger cadre of justices might prevent any single president from drastically remaking the court. That’s because it would take more appointments to make a difference. Two appointments to a nine-member court amount to more than 20% of its strength; two appointments to a 15-member court might not swing the needle by much.
And the majority of presidents — 24 of the 44, not including Trump — have appointed two justices or fewer. Among the outliers with more than two were George Washington (11), Franklin Roosevelt (eight), and Andrew Jackson, Abraham Lincoln and William Howard Taft (five). Taft also appointed Edward Douglass White as chief justice, but White already was on the court as an associate justice.
Washington, of course, was filling an vacant Supreme Court bench for the first time, and Jackson and Taft were the beneficiaries of a spate of deaths among the jurists, timely or otherwise (Jackson appointed one justice to fill the seat of another who had died the year before he took office). Of Lincoln’s five appointments, one was for a newly established seat. FDR got a surfeit of appointments because he held the presidency for 12 years, though he had no openings to fill during his first term, when a conservative majority was systematically emasculating the New Deal.
Any effort to remake the court to fulfill partisan or ideological goals is likely to be politically divisive.
“Progressives should be very careful about suggesting this might happen,” Chemerinsky says. “Exit polls from the 2016 election indicated that the Supreme Court was the most important consideration for Trump voters, but not for Clinton voters. Trump voters in 2020 can be sanguine that conservatives control the Court and will for a long time. If they perceive Democrats might try and take the Court by changing its size, it will provide a strong appeal to conservative voters. It is much like how appeals for impeachment are being used by Trump and Republicans in the 2018 midterm elections.”
The paradigmatic example of public discomfort with court-packing is FDR’s 1937 scheme, which roiled his Democratic Party allies, attracted less than enthusiastic support from the public, and ultimately had to be withdrawn — though not before the strain of trying to push it through Congress got blamed for costing the life of the popular Senate Majority Leader Joe Robinson of Arkansas. Many historians believe that FDR’s obstinacy on behalf of an unpopular scheme undermined the rest of his domestic political agenda.
Roosevelt was hoping to ride a wave of discontent with the Court, especially after a 1936 ruling known as Tipaldo, after its detestable slave-driving protagonist. The ruling overturned a New York law setting a minimum wage for women on grounds of the supposed constitutional sanctity of the contract between employers and their employees.
The popular uproar over Tipaldo even united two old adversaries—Herbert Hoover, who proposed a Constitutional amendment to overturn it, and the liberal Republican Harold Ickes, FDR’s Interior Secretary, who in his diary castigated the court for upholding “the sacred right...of an immature child or a helpless woman to drive a bargain with a great corporation.” Ickes added, “If this decision does not outrage the moral sense of the country, then nothing will.”
But FDR miscalculated how far the public and his own colleagues were prepared to go. Roosevelt also was faulted for rolling out the plan without consultation with congressional allies and as a surprise. His proposed system was too elaborate by half: The idea was to add an associate justice whenever a sitting justice turned 70 and refused to retire, up to a maximum of 15. Among other flaws, this was seen as a personal affront to the six justices who already had reached that age, including Louis Brandeis, a leading liberal, and Chief Justice Charles Evans Hughes.
Moreover, under Hughes’ leadership, the court already was moving away from its opposition to the New Deal and worker rights. In the spring of 1937, observed historian William E. Leuchtenburg, the court began to execute “an astonishing about-face,” upholding a Washington state minimum wage law, collective bargaining rights under the National Labor Relations Act, and Social Security. (The vote change on minimum wage by Justice Owen Roberts, who upheld the Washington law but had earlier voted against the New York statute, was dubbed “the switch in time that saved nine.”)
As for the argument that court-packing is inherently wrong, the fact of the matter is that the current court already is packed: The Republicans did so by refusing even a committee vote for Merrick Garland, the moderate judge President Obama nominated to succeed Justice Antonin Scalia, on the specious grounds that the appointment was made too close to an upcoming presidential election. Their refusal to consider the nomination left the door open for Trump’s nomination of the hard-right Neil Gorsuch.
“For the first time in modern history, a political party packed the court,” Epps writes. “Confronted with a highly qualified, popular, centrist, and conciliatory nominee, they simply refused to allow the vacancy to be filled, and they did so explicitly to politicize the court.” This suppressed the court’s role as one of the checks and balances installed in our democracy by the founding fathers.
As a result, Epps concludes, “on the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.”