Foil Bush’s Maneuvers for Packing the Court

Bruce Ackerman is a professor of law and political science at Yale

We are on the brink of a court-packing crisis. President Bush, relying on the conservative Federalist Society as his principal advisor, soon will be sending a stream of right-wing ideologues to the Senate for confirmation to the nation’s federal courts. This will pave the way for hard-right nominations to the U.S. Supreme Court as the high court’s justices depart.

So long as the president is left unchecked, he will be sorely tempted to ram high court appointments through the evenly divided Senate on a vote of 51 to 50, relying on Vice President Dick Cheney for the tie-breaking vote.

If this gambit succeeds, the result will be nothing less than a constitutional revolution. The present court has three youthful conservatives--Justices Clarence Thomas, 52, Anthony M. Kennedy, 64, and Antonin Scalia, 65. With a bit of reinforcement, a hard-right majority on the nine-member court will rule the nation long after George W. Bush has left the White House.

The current judicial majority has already put the nation on notice of its revolutionary agenda, striking down the Violence Against Women Act and seriously weakening the Americans With Disabilities Act.


Once rejuvenated, the majority can be expected to thwart efforts to secure genuine equality for all Americans, create new constitutional limits on environmental protection and impose the religious right’s fundamentalist morality on just about everyone.

Are most Americans really prepared for this brave new world? How will they respond when told that they must wait 10 or 15 years to reassert control over their personal and political destiny?

There have been other runaway courts in our history. The most famous was the reactionary court of the 1930s that made war on Franklin D. Roosevelt’s hugely popular New Deal. In time, however, Roosevelt made appointments to the court, which were confirmed by the Senate, that brought the court more into line with public thinking.

But President Bush is no Roosevelt. In precipitating a sweeping constitutional revolution, he cannot claim a broad popular mandate for change. To the contrary, he has been placed in the White House by the same judicial bloc whose grasp on power he would be extending.


This is the first time in American history that the majority of the Supreme Court has the potential to arrange for its own succession. By intervening in the last presidential election, the conservative majority removed the American people’s check on a runaway court. It is one thing for the justices, who are not elected, to exercise the sovereign power of judicial review. It is quite another for them to insulate themselves yet further from popular control by putting their man in the White House.

This unprecedented situation requires the Senate to ask new questions and draw new lines. The first step should be a moratorium on Supreme Court appointments until the American people return to the polls in 2004. Under present rules, it only takes 40 senators to block any appointment to the court. Senators should use this power to force President Bush to demonstrate that he can win reelection in 2004 without the court’s assistance.

While the present case has no exact historical parallel, another episode does provide a precedent for a moratorium. When President Lincoln was assassinated, he was replaced by Vice President Andrew Johnson, who threatened to pack the court with conservatives. Congress responded with a statute disabling him from replacing retiring justices. It explained that it was John Wilkes Booth, not the American people, who had transformed Johnson into the president. Clearly, Congress would not have deprived Lincoln of his choices for the court.

By the time Johnson left the White House in 1868, the court was reduced to seven members. After the election, Congress returned the court’s size to nine, giving Ulysses S. Grant the power to fill vacancies.

A similar logic applies today. The right-wing bloc on the court should not be permitted to extend its control for a decade or more simply because it made rulings that cleared the way for Bush to take the White House.

The Supreme Court has often functioned perfectly well without its full complement. During the 1990s, the justices cut their workload dramatically and now deliver only 80 opinions each year. They can easily maintain this pace with two or three fewer justices.

A strict moratorium is not appropriate in the case of nominations to the lower courts. Some new appointments are required for the effective administration of justice. But this is no reason to populate the courts with judicial ideologues intent on a revolutionary agenda.

The Bush administration’s peremptory ejection of the American Bar Assn. from its traditional role in vetting nominations makes senatorial scrutiny especially imperative. Despite Bush’s wishes, the Senate should continue to require that the ABA thoroughly investigate a nominee’s background. Only then can the Senate be in a position to consider soberly whether a nominee is a mainstream jurist with solid professional credentials.