Egged on by progressive activists, some 2020 Democratic presidential candidates are expressing interest in the idea of increasing the number of seats on the Supreme Court. It’s easy to understand why the idea of “packing” the court with new justices appeals to Democrats, but it’s a bad idea that would further politicize a court that has already moved too far in that direction.
The size of the court isn’t fixed by the Constitution, and Congress is free to add or subtract seats. But since 1869 the court has comprised a chief justice and eight associate justices, despite the famous failed attempt by President Franklin D. Roosevelt in 1937 to persuade Congress to enlarge the court.
To increase the number of justices, the Democrats likely would need to control the White House and both houses of Congress. And, of course, only if the political stars aligned perfectly (and they could be assured the new seats would be filled by Democrats) would they want to do so. That makes court-packing a longshot.
That fact hasn’t prevented candidates from discussing the idea. Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand have all indicated an openness to expanding the court.
South Bend, Ind., Mayor Pete Buttigieg has floated a complicated (and arguably unconstitutional) proposal that combines expansion of the court to 15 members with a change in how some of the justices are appointed. The court would comprise 10 justices “confirmed in the normal political fashion” and five chosen by the other 10.
In an interview with Politico, Warren said: “It’s not just about expansion; it’s about depoliticizing the Supreme Court.” But action by a Democratic president and Congress to add seats to create a majority of Democratic appointees would be a quintessentially partisan act.
Because justices have life tenure and can’t be voted out of office, it’s a problem for the court’s legitimacy if it’s perceived as a partisan institution. Sadly, such a perception exists, despite the fact that many decisions are unanimous.
Some of the court’s recent 5-4 decisions, such as a 2013 ruling gutting key provision of the Voting Rights Act, have been seen as benefiting of the Republican Party. Furthermore, at this point in history all of the conservative justices are Republican appointees and the liberal justices are all Democratic appointees. That wasn’t the case as recently as 2010 when Justice John Paul Stevens, a Republican appointee, led the court’s liberal wing.
It’s also true that the political parties themselves have become more ideologically pure, and that presidents of both parties — but especially Republican presidents — emphasize ideology in selecting nominees. Senators often vote against a qualified nominee simply because he or she was nominated by a president of the other party. Americans now assume that a justice chosen by a Republican president is likely to have conservative views on high-profile issues and that a Democratic nominee will have contrary views.
If the objective is to “depoliticize” the court, a move by a Democratic Congress to expand it abruptly for the benefit of a Democratic president would have the opposite effect.
Some Democrats admittedly don’t care. Their overriding goal is to undo what they see as an illegitimate majority of Republican appointees, secured by the Senate Republicans’ refusal in 2016 to act on President Barack Obama’s nomination of Judge Merrick Garland to succeed the late Justice Antonin Scalia. By keeping the Scalia seat open, on the preposterous pretext that voters should have a say in filling a vacancy created during an election year, Senate Majority Leader Mitch McConnell made it possible for Trump to appoint Justice Neil Gorsuch.
The Republican-controlled Senate’s treatment of Garland was reprehensible. But enlarging the court as a form of partisan payback would jeopardize the independence of the court and could be a short-lived victory. As Sen. Cory Booker, another Democratic presidential candidate put it: “If Democrats add people when we have an alignment of power, and that’s the totality of our reforms, then it’s clear that Republicans are going to try to do that as well. And one day our grandchildren will ask us: ‘Hey, Granddad, why are there 121 people on the Supreme Court?’”
Booker suggested that there were other ways to deal with the “extremist tilt” of the Supreme Court, including term limits for justices, an idea former Rep. Beto O’Rourke endorsed on Wednesday. Harris and Buttigieg also have mentioned the possibility of term limits.
Limiting justices to 18 years, as O’Rourke proposes, would preserve their independence while reducing the likelihood that they would delay their retirement for political reasons, perhaps past the point of physical or mental impairment. Fixed terms would have the additional advantage, proponents say, of lowering the political stakes of any single appointment to the court. It’s an idea worth studying.
For many in the Democratic Party’s base, such reforms are understandably less exciting than an enlarged Supreme Court that would rule as they preferred. But Democratic candidates need to take a longer view. Meanwhile, the best way Democrats can ensure that a president of their party will get to appoint justices is to defeat Trump next year.