The GOP Senate killed President Obama’s SCOTUS nomination of Merit Garland and is now forcing a far right judge on the court who has, by the way, committed perjury. When the Democrats take back the Senate and Congress the solution to dealing with the court packing – pack three more liberal judges on the court.
By James DiGeorgia
Currently, the Constitution does not mandate the Supreme Court to have 9 members, and the number could be increased to 13, or 17 through a simple act of Congress. This would create an effective way for any political party controlling the presidency, Senate and House to add numerous justices to the Court who are ideologically sympathetic at the same time.
Many left-liberals and leftists feel this drastic action should be taken to ensure the passing of future progressive legislation. Their concerns are not so much for the rights of LGBTs and abortion, but they are rather concerned with whether redistributive programs and economic regulation are constitutional. Recently, the Supreme Court shattered unions in the public sector under the pretext of the First Amendment. The Supreme Court had 4 votes for fully disbanding the Affordable Care Act in 2012. A judicial conservative movement is also emerging, primarily driven by Don Willett, an appellate appointee of Trump’s. They want the courts to be more forceful in stopping economic regulations.
If the Supreme Court is dominated by this type of judicial traditionalism, claiming back Congress and the White House will not be enough for legislation like Medicare-for-all, a free college plan, or a $15 minimum wage to be accepted. The Supreme Court could simply declare them unconstitutional as soon as these have been passed. In this situation, court-packing as a defensive measure starts looking reasonable.
In 1937, court-packing was contemplated seriously when Franklin Roosevelt had to square off with a hostile Supreme Court that regularly used the same grounds to rule features of the New Deal unconstitutional. During those years, the Court construed the 5th and 14th Amendments’ due process clauses as limiting economic regulation and ruled out things such as minimum wage laws, legislation to limit a work week to sixty hours and federal bans on child labor.
Roosevelt planned to increase the size of the court as this would have allowed as many as 6 new justices, and give him a majority of 9 to 6 for the New Deal. Although the plan was eventually unsuccessful in the Senate, it did successfully pressure Justice Owen Roberts to change his position from conservative to liberal and rule that the National Labor Relations Act and minimum wage laws were constitutional.
If court-packing demands grow persistent enough, something similar could happen in the current court, presuming John Roberts, the new median justice, begins to view his job as having to avoid the Court being radically disrupted by Democrats afraid of being locked out of influencing policy for generations.
Why court-packing makes sense
A political scientist from Roosevelt University, David Faris, makes an extensive argument for court-packing in ‘It’s Time To Fight Dirty’. Faris argues that court-packing should be part of a bigger strategy that will amplify the political power of the Democrats. These include statehood for Puerto Rico and DC, increasing the House of Representatives and splitting California into numerous states.
Faris also argues that the refusal of the Republican Senate to consider replacing Antonin Scalia with Merrick Garland violates a standard that a president must be able to nominate whomever they think best, within reason.
Faris continues that both parties regard Supreme Court vacancies as being lotteries that are lost by those not fortunate enough to preside over an opening, or won by presidents. Merrick Garland’s treatment by the GOP means that the unspoken agreement between the two parties has been broken, and in Faris’ view, this suddenly makes court-packing a viable measure.
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According to Faris, the threat of all legislative accomplishments of the next Democratic government being undone by a conservative court makes court-packing necessary.
If a court strikes down issues that are clearly supported by the majority of the public, including legislation that establishes gay rights, equitable funding for public education, abortion rights, and a Medicare for All insurance system, this could create a crisis in US society of the magnitude that has not been seen for decades.
Faris is in favor of eliminating judges’ lifetime tenure and replaces it with nonrenewable 18-year term limits as proposed by the impartial group ‘Fix The Court’. This would lower the stakes of confirmation battles.
Term limits would, however, need a constitutional amendment to enact unless nominees pledge to voluntarily step down after 18 years. If only one party’s nominees pledge this, it would effectively be a form of unilateral disarmament. On the other hand, court-packing would only require a simple act of Congress, possibly pressuring Republicans into compromising by accepting term limits.
Faris concludes that if the conservative right is not willing to support the idea, as is almost certainly due to political calculations in the short term, Democrats should use their constitutional power to pack the Court, thereby protecting the legislation required by the American majority.
Numerous liberal/leftist writers echo Faris’ arguments in the reverberation of Kennedy retiring. In the Outline, a well-known Twitter dog lawyer, @kept_simple, argues that increasing the Court’s size is a response entirely proportional to the GOP’s abuse of process that is justified by Gorsuch’s appointment. In moving the Court to a possible 5 to 4 conservative majority from a 5 to 4 liberal majority, the Republicans essentially steal two votes. This increase in the Court justices to 11 would simply rebalance that which was taken.
A fellow at the Roosevelt Institute and political scientist, Todd Tucker, argues using Jacobin’s policy outcomes as a basis.
Tucker writes that with climate catastrophe on the horizon and union density at the lowest ever, lawmakers of the future need tools that are tougher than what FDR had available. Pulling a few justices from Federalist Society debating clubs should not prevent an economy that is both more sustainable and democratic.
There are other historical examples for court-packing that bolster arguments for it.
Political scientist JR Saylor described 7 times the Supreme Court has been enlarged or reduced by 1 or 2 judges by Congress in an article for the Baylor Law Review in 1968.
These changes were implemented to uphold the policies of the government in power as constitutional or to eliminate justices making decisions offensive to the President.
The 7 times were:
· Before Thomas Jefferson’s inauguration in 1801, the Judiciary Act was passed by the Federalist Party as they left office. This shrank the court from 6 to 5 members by stipulating that the next member that resigned or died would not be replaced.
· Jefferson’s party rescinded the 1801 law in 1802 and reinstated the court to 6 members.
· The Congress dominated by Jefferson increased the Court to an even number of members in 1807 to cater for a new judicial circuit covering Tennessee, Ohio, and Kentucky.
· Two new judicial circuits were created in 1837, increasing the size of the Court to 9. Saylor believes this was due to the geographic burdens of the westward expansion, but also mentions that Jackson took a chance and appointed 2 new justices on the day prior to him leaving office.
· Congress increased the number of justices in the Supreme Court to 10 in 1863 during the Civil War. According to Saylor, it was suspected that Lincoln needed another person in the Court he could depend on in the event that some of the doubtful and crucial wartime legislation was invalidated.
· Pro-Reconstruction Republicans in Congress fought with President Johnson in 1866, resulting in Congress passing a law that prevented Johnson from filling vacant posts until the Court was reduced to 8 members. This happened in 1867.
· Pro-Reconstruction President Ulysses S. Grant was in office when Congress increased the number of Court justices to 9 in 1869. It has stayed there ever since.
This history does not show policymakers with no political interest negotiating the Court’s size impartially, but rather reflects political manipulation with the objective of achieving partisan advantage. The practice was used by some of American history’s most heroic figures, including Lincoln, and Radical Republicans in Congress like Charles Sumner and Thaddeus Stevens.
Why court-packing could be dangerous
Political scientists and constitutional scholars criticize court-packing to this day, and it was unpopular when Roosevelt proposed it.
Daniel Ziblatt and Steven Levitsky, Harvard comparative politics scholars characterize 1937 as a close call with democratic backsliding in their book ‘How Democracies Die’. Also mentioned in the book is Richard Nixon’s attempt at the end of his presidency to evade justice.
Ziblatt and Levitsky write that democratic institutions depend on the governing party’ willingness to defend them, even against their own leaders. The fall of Nixon and Roosevelt’s court-packing scheme failure were due to key members of their own parties standing up and opposing them.
Tom Ginsburg and Aziz Huq are UChicago law professors that concur in their 2017 paper “How to Lose a Constitutional Democracy.” They write that presidential efforts at Supreme Court packing represented low points for the rule of law in America and that this technique is still followed by illiberal democrats today.
It is not difficult to see why political scientists that take a more international view see court-packing as a threat to democracy. As Ginsburg and Huq point out, court-packing is frequently used as a tool of would-be authoritarians.
Some examples are listed below:
· In 1946, Juan Perón, Argentina’s president and military coup conspirator impeached 4 out of the country’s 5 Supreme Court justices successfully in a power consolidation bid.
· In 1989, Carlos Menem, Argentine’s President, feared Supreme Court opposition to his schemes to privatize, and expanded the court from 5 to 9 members, packing it with judges sympathetic to his cause.
· In 2004, the allies of Hugo Chavez in Venezuela’s National Assembly increased the Supreme Court from 20 to 32 members and packed it with judges loyal to Chavez.
· In 2010, President Recep Tayyip Erdoğan of Turkey, then prime minister, pushed through a referendum that increased the size of the Constitutional Court from 11 to 17 members. This enabled him to fill the new vacancies with loyalists.
· When Viktor Orban’s rose to power in Hungary in 2010, his Fidesz party changed the Supreme Court appointment rules so that the opposition did not have to assent to nominees. The number of judges was increased from 11 to 15 in 2011, while the terms on the bench were increased from 9 to 12 years in 2012 and 2013. The 70-year age limit previously in place was also eliminated. These combined moves resulted in 11 out of 15 judges being loyal to Fidesz.
· Juan Orlando Hernandez, Honduras’s National Congress president in 2012, and now the country’s dictatorial right-wing president conspired to dismiss 4 of the 5 Supreme Court justices to replace them with allies.
· The authoritarian nationalist Law and Justice Party in Poland seized control over the Supreme Court in 2017 by pushing through legislation giving the ruling party the power to dismiss judges below a specific retirement age and the right to appoint new judges. The president vetoed the legislation due to the massive public opposition but accepted a similar bill only months later. This followed a decision by the party in 2015 to force a supermajority requirement on the court and not swear in judges appointed by their predecessors, effectively weakening the court.
It is clear that autocrats use court-packing when consolidating their power and the method has been popular in the past few decades. It is currently still used by authoritarian backsliders such as the Law and Justice party, Erdoğan and Orban, and people who worry about the anti-democratic tendencies of Trump compare him to them.
It could be argued that simply because this method is used does not mean that court-packing is anti-democratic in itself. When Italy adopted the Acerbo Law, thereby abandoning proportional representation in 1923, it was done to try engineer landslide victories for the fascists of Benito Mussolini. It does however not follow that any country like Canada, the UK, or the US that does not use proportional representation is automatically an autocracy. As a tool, court-packing can be used for democratic ends, or for authoritarian ones.
Critics could reply that even well-intentioned court packing can trigger a cycle of escalation that ends up weakening and discrediting the institution being fought over. As the Supreme Court does not have an army, its authority depends on political forbearance and public acceptance. Were it to be weaponized through the court-packing scheme, it might suddenly find that its rulings are no longer obeyed.
Let’s presume for a moment that the president packs the court in 2021, and it overrules Milliken v. Bradley, followed by forcing white suburbs across the country to enroll their children into inner-city public schools while accepting students from poor neighborhoods enrolled at their own schools. If this type of ruling were to follow court packing, what are the chances that rich suburbs would actually bus their kids to poor schools, or would allow children from poor neighborhoods into their own schools? Would they obey, or decide that the ruling was illegitimate and simply ignore it?
The same type of scenario could be applied to a number of other issues: South Dakota banning abortions except when a mother’s life is at risk, thereby disregarding Supreme Court rulings, or Alabama doing the same by refusing to issue same-sex marriage. If this sounds like reaching, let me remind you of a statement made by ThinkProgress’s Ian Millhiser. Although Millhiser supports court packing as a last, desperate effort to prevent the Supreme Court from permanently entrenching economic inequality, he notes that court packing would destroy the legitimacy of the federal judiciary while emboldening some states to ignore unpopular decisions. This could ultimately lead to the Fourth Amendment disappearing.
Weakening the Supreme Court might actually be a good thing and many legal scholars on both sides of the fence argue that the US goes too far in embracing judicial review. The Supreme Courts in other countries seldom have the power ours does to strike down democratically enacted laws. Court-packing could well trigger a spiral that leaves the Court weakened dramatically, resulting in power being returned to Congress and the states to settle contentious issues through democratic processes.
Although I’m sympathetic to that argument, it is however possible that this does not happen, but that court-packing leads to more games of constitutional hardball while possibly enabling a future president to pass legislation that makes it impossible to dislodge him from power, with a packed Supreme Court that is unable or unwilling to stop it. Broadly speaking, that is what happened in Turkey, Venezuela Honduras, Hungary, and Poland. It could happen here.