Imperative or Imprudent? The Case Against Expanding the Supreme Court
Image Source: Supreme Court Historic Society
The end of the Supreme Court’s 2021-22 term served as an inflection point in its history, cementing a harrowing reality within the United States: nothing is apolitical. In just a matter of days, the Court’s conservative supermajority struck down firearms regulations in New York, jeopardized the relationship between church and state in a Maine public school, and overturned Roe v. Wade, stripping from federal law the right to obtain an abortion. In response, thousands of passionate Americans took to the streets in protest outside the nation’s highest court, citing a worrying infiltration of partisan politics into what Alexander Hamilton once called the least dangerous branch of government.
Certainly, a great deal of frustration regarding the Supreme Court is merited. President Donald Trump’s three picks for the Court were each engulfed in political controversy. Justice Gorsuch is only serving because Mitch McConnell had denied President Obama’s choice a confirmation hearing, claiming that the next President—to be elected in eight months—should pick the nominee. Justice Kavanaugh, an alumnus of Yale’s Federalist Society and former employee of the Bush White House, had his nomination muddled by allegations of sexual misconduct. Justice Barrett, tapped by President Trump after the death of Ruth Bader Ginsburg, was speedily confirmed just days before the 2020 presidential election, a calculated move glaring of Republican hypocrisy. Three consecutive picks—stolen, according to many disgruntled Americans—had allowed President Trump and his Republican compatriots to craft an insurmountable majority for the next generation, one that conservatives had been eyeing for decades. Even before Roe’s demise, Democrats saw the writing on the wall; the Court had become poisoned with conservative politics. As such, prominent Democrats proposed a solution to depoliticize the Court: adding more justices (Markey). That is a profoundly misguided idea.
First, it is critical to recognize that court expansion, or court packing, depending on which side is asked, is not a new concept. (Proponents might double down, arguing that not only is this idea not radical, but rather well-rooted in American history.) Indeed, nowhere in the Constitution is there a command of a nine-justice Supreme Court. As such, when President Franklin D. Roosevelt felt perturbed by the Court’s decision in Schechter Poultry Corp. v. United States (1935), a decision that would severely limit his executive power, FDR proposed expanding the Supreme Court. To FDR, the Court’s adherence to Lochner-era jurisprudence (1897-1937) was a roadblock to his New Deal, so stacking the bench with political allies would shield his labor protections (Murphy). Though his plan never gained the requisite traction for implementation, his seemingly well-intentioned idea may, in fact, have proved fatal for democracy.
If we look beyond the United States, court packing sports an ugly global history of dismantling democratic societies, paving the way for authoritarian regimes that have wrought profound damage. In the 1940s, Argentine president Juan Perón noticed that the supreme court had consistently struck down his favored pro-labor legislation, a core tenet of his populist agenda. This was unacceptable, and thus, he convinced his allies in the legislature to impeach hostile justices and appoint regime loyalists in their place (Levitsky and Ziblatt). The court never opposed him again. In the 1990s, Venezuelan dictator Hugo Chávez and his political posse dissolved the supreme court, replacing the body with a twenty-member Supreme Tribunal of Justice. However, when Chávez still did not receive the fealty he felt he deserved, he expanded his already partisan tribunal by twelve members, filling each position with a staunch supporter (Human Rights Watch). Never again did he receive an unfavorable decision. Even recently, Prime Minister Viktor Orbán of Hungary nearly doubled the size of the Constitutional Court and altered the nomination rules such that his Fidesz party possessed sole control of the process, ensuring a submissive judicial branch (Levitsky and Ziblatt). In each of these countries, the desire of the political arms of government to influence an ostensibly impartial judiciary resulted in increased authoritarianism, and in some cases, a coup d’etat. Although the United States is certainly different from Argentina, Venezuela, and Hungary, the American judicial system is every bit as vulnerable to partisan poisoning. Such a phenomenon is perhaps best exemplified by Justice Thomas’ refusal to recuse himself in matters regarding his wife’s involvement in the January 6th insurrection aimed at overturning the certified results of the 2020 election.
Although Americans’ vexation of three controversially appointed seats—resulting in the reversal of federal abortion rights—is palpable, calls to expand the size of the Supreme Court are specious. Indeed, if the operating premise of court expansion is that Republicans have undermined the integrity of the judiciary by staining it with political partisanship, would pro-expansion Democrats not, then, be guilty of the same? In a 2021 op-ed in the Boston Globe, Democratic Senator Elizabeth Warren argued that in order to reverse the undue Republican influence over the Court, her colleagues in Congress must support legislation that adds more justices (Boston Globe). However, Senator Warren assuredly means liberal justices, right? With President Biden in the White House and the Democrats in control of the Senate, any justice added to the bench would certainly reflect left-of-center preferences. If it is subverting democracy to use political preferences to appoint Supreme Court justices, how is doing the same to undo the damage any better?
Still, it is easy to see why many Americans support expansion. Abortion rights might be restored, Citizens United might be overturned, and affirmative action policies might no longer be at risk. But, these feel-good political achievements are surface-level, and most importantly, temporary. Indeed, there is no limiting principle to court packing. If Democrats, while they hold the White House and Senate, increase the Court’s size by four justices, what precedent is to stop Republicans from adding, say, five justices once the GOP regains political power? Control of Congress and the presidency are in a perpetual state of fluctuation, and in a time of hyperpolarization, it is hard to imagine that Republicans would show restraint if Democrats were to move forward with court expansion. Since the Supreme Court holds no enforcement power, its authority, therefore, rests on its public legitimacy (Politico). If there already exists, as Democrats say, a crisis of confidence in the Supreme Court, does adding more like-minded justices—a move that may further erode judicial independence—seem worth the temporary success of regaining abortion rights? If respect for democracy in the United States is going to remain, the answer must be no.
Though it may be disappointing, we must remind ourselves of a harsh truth about democratic societies: unfavorable outcomes are not only possible, but an inherent part of self-governance. Yet what separates thriving democracies from despotic authoritarian regimes is a mutual agreement to play by the rules of the game. Adding justices to the nation’s court of last resort in a politically motivated manner is anathema to a shared respect for democracy. And although the temporary rewards would be tremendous, the risk to the future of the United States is simply too great. To those frustrated by the Court’s actions, a degree of political discipline is warranted. Accepting temporary defeat and upholding our cherished commitment to democratic norms—one that is, admittedly, not always shared on all sides—is worth more than going for broke and risking the demise of democracy in America.
References
https://www.hrw.org/news/2004/12/13/venezuela-chavez-allies-pack-supreme-court
Levitsky, Steven and Daniel Ziblatt. 2018. How Democracies Die. New York: Crown Publishing.
https://www.markey.senate.gov/imo/media/doc/judiciary_act_of_2021.pdf
https://www.politico.com/news/magazine/2022/01/15/supreme-court-reform-justices-527111