Earlier this week, some Democrats presented a bill in the House of Representatives which would allow Congress and the President to add four Supreme Court justices ( a practice known as court-packing), as a response to counter the current conservative majority in the bench, where 6 out of 9 justices were nominated by a Republican president. One of the sponsors of the bill, Senator Ed Markey (D-MA) said this move was in response to Mitch McConnell “stealing” two seats of the Supreme Court and that the current Court was “illegitimate”.
Realistically, it is very unlikely this legislation would become a law in the near future. Speaker Nancy Pelosi distanced herself from the measure saying that she has “no plans” of putting the legislation to a vote, and many Senators have also expressed their concerns on packing the court. President Biden, who has previously said he’s not a fan of the proposal, formed a commission that would evaluate the state of the Supreme Court and advise the President if any changes are needed.
Although the bill presented on Congress is almost certainly doomed to fail, the debate would certainly continue to rage in the political circles of Washington D.C. and it would prove to be a crucial one, as the Court plays the role of ultimate umpire on controversial legislation (Obamacare for example), hot topic issues (like abortion) or even in the event of contested elections.
The Supreme Court is an incredibly powerful branch of government: it is capable of striking down laws if they consider them to be unconstitutional, consider some rights constitutional, force states to adopt/reject measures they order in their rulings, and decide who’s right when the different branches of government are in conflict.
Not only the Court is very powerful, but it also experience little-to-none accountability for their actions. Once a judge is nominated by the President and confirmed by Congress, they serve there for life or until they decide to retire and there is almost nothing the other branches can do to stop them, no doubt why some have likened them to the iconic “philosopher-kings” of Plato’s Republics.
Hence, if a truly politicised faction dominates a majority of the court, they would have an incredible amount of power. A quote often attributed to former Justice Brennan explains this dynamic very well: “five votes can do anything around here”
The Supreme Court holds great power in the American system and also has a heavy burden: which is trying to keep itself relatively apart from the rancorous partisan debate that is so common in Washington D.C, the only way that the court keeps the legitimacy it has to wield such an enormous amount of power is if people do not see them as a proxy of party politics.
Court-Packing: Causes and Consequences
Politicization of SCOTUS nominations
There are some precedents on court-packing (FDR tried it in 1937), however, our current Supreme Court controversies, however, are not based on antiquated discussions about the New Deal, they mainly come from the growingly partisan manner court nominations are being handled.
Robert Bork’s nomination (made by Reagan in 1987) marked the beginning of partisan confirmation hearings, with Democrats attacking his nomination so effectively and viciously that a new term was coined to define harsh campaigns of vilification. After that, confirmation votes -which at the time were usually bipartisan- started to sour at a gradual but constant pace, with the vote margins going from almost unanimous to basically a party-line vote.
For example, while the famous conservative-liberal duo of Scalia/Ruth Bader Ginsburg was confirmed with more than 90 votes each, it would be impossible today to find anyone who could reach that margin. In fact, the last confirmation that had more than 70 affirmative votes was Chief Justice Roberts in 2005, since then no judge has managed to harness more than six votes from the party in opposition during their nomination.
The tensions have risen significantly over the last five years when Republicans were able to nominate and confirm three judges to the bench, while Obama only managed to do the same with two justices during his eight years of rule. Although some of that Republican success can be explained by luck (nobody controls when justices die) some of it was also due to Mitch McConnell’s tactical manoeuvring.
Democrats are still calling foul over the nomination processes of Neil Gorsuch and Amy Coney Barrett, since Mitch McConnell (R-KY) prevented the vote of Obama’s nominee in 2016 arguing that the new president should be the one capable to do that, saying Republicans stole the seat from them. Democrats were even more enraged when McConnell changed his position in 2020 after the death of RBG and allowed Trump’s nominee (Amy Coney Barrett) to be confirmed.
Democrats view these tactics as illegitimate and power-grabs, which is why some are determined to do a power-grab of their own, proposing to heavily expand the size of the court as a way to counter the Republican judicial success over the last four years.
A polarizing process
Democrats may have an understandable rage over the way the last three nomination processes went out, but if they think that pouring gasoline to the partisan fire of Supreme Court nominations would not come back and haunt them (and the country) in the future, they are sorely mistaken.
If you combine the extremely powerful capabilities the Supreme Court has with the partisan nature of our modern politics, you will get a perfect recipe to destroy the public credibility of the judicial branch of government which arguably needs to keep the highest percentage of public support to maintain its legitimacy.
Polls are showing this to be right, with Gallup showing that the percentage of people who disapprove of the work of the Court has risen significantly from 29% in 2002 to almost 43% in 2020.
Court-packing would make these numbers far worst. It would make the fate of the Supreme Court dependent on every single presidential election, as Republicans would be more than willing to retaliate once they inevitably come back to power in the future and do a “court expansion” of their own, nominating a ludicrous number of judges to counter the absurd amount of judges Democrats had already nominated.
With the Courts now converted into a political football, aspiring nominees would be evaluated (even more) by a commitment to ideological purity, as there would be no need to even maintain a facade of requiring judicial competence, the only important thing would be to keep enough political support within your party to get the nominee confirmed, especially after the Filibuster was discarded for judicial nominations, making bipartisanship unnecessary.
The main goal of both parties would make sure that those judges you are confirming would be ideological enough to keep your side in a favourable position on the bench. Nominating a competent judge who could also be a swing vote would be terrible politics, as it could give the other side an extra judge when they inevitably have their turn at court-packing.
Even worst, the general public would see the Court as just another theatre of total partisan warfare, not that different from Congress. How many people would then feel comfortable obeying their decisions, once the veil of impartiality is thrown away and openly burned in public?
The rule of law could also be endangered, with the ever-changing court dictating new jurisprudence quickly before the other side makes a retaliatory court-packing bill into law. Political actors would even be encouraged to defy Supreme Court decisions with the hopes that a new one would treat them more favourably.
This proposition is even worst when you consider it alongside others like eliminating the filibuster. If elections and political rhetoric are ugly today, imagine a world where every single election is an issue of political life or death, where having the senate and the White House allows you to pass any law and appoint a new court. If today’s politics look like a war of attrition, a no-filibuster and court-packing world would be the equivalent of Mutual Assured Destruction.
Democrats are furious about Republican manoeuvring over the Supreme Court, but making momentous constitutional decisions based on revenge without considering the broader consequences is not statesmanship.
President Biden campaigned as a unifier, someone capable of bringing civility and decency back to Washington. Packing the court, and eliminating the filibuster would make cooperation harder, further dividing the nation into two irreconcilable camps. Biden has refused to follow both policies, let’s pray he keep his word.