Dont pack the court

[Ed. note: The prospect of adding seats to the Supreme Court has been a rallying cry for some left-leaning politicians and activists for years. When Democrats won the White House in November and narrowly took control of the Senate in January, those calls intensified. President Joe Biden has been non-committal but has pledged to study the issue. We asked two leading commentators, one on each side of the debate, to assess the prospects of court expansion and present their case for why it is, or is not, needed. The other piece in this series can be found here.]

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and author of Supreme Disorder: Judicial Nominations and the Politics of Americas Highest Court.

When Ruth Bader Ginsburg died in September, Democratic Senate Leader Chuck Schumer warned that nothing is off the table if Republicans filled her seat before Inauguration Day. Thus, when Amy Coney Barrett was sworn in little more than a month later, the drumbeats resumed for court packing: adding seats to rebalance the court. Although presidents had always made nominations to Supreme Court vacancies arising in election years, and their success hinged almost entirely on whether their party controlled the Senate, there had never been a confirmation so close to an election. And this one came four years after Republicans had declined to take up Merrick Garlands nomination to the opening left by Antonin Scalias death, allowing President Donald Trump to appoint Neil Gorsuch.

These calls for court packing didnt start last fall, but grew from 2016 through the polarizing confirmation of Brett Kavanaugh, and played a major role in the Democratic presidential primaries. Indeed, most of those running expressed a willingness to add justices, with Pete Buttigieg, now the secretary of transportation, adopting a more nuanced proposal to have five justices picked by each party, who then would have to unanimously agree on another five. Of course, trying to depoliticize the court by affixing scarlet partisan letters to two-thirds of its members is too clever by half.

Joe Biden declined to join most of his fellow candidates in endorsing court packing and stayed coy on the issue during the general election, ultimately proposing a bipartisan commission to study judicial reform because the court system … is getting out of whack. This commission is apparently staffing up, with four names floated in public. One of those names is Caroline Fredrickson, who was until recently president of the American Constitution Society (lefty counterpart to the Federalist Society). She noted in the early primaries that the Kavanaugh nomination has put a fire under progressives and that its not written in stone that the court has nine seats.

Indeed, not even constitutional parchment specifies the number of justices, but historically, each expansion of the court was accompanied by political mischief. As the country grew, Congress created new circuits, with new justices appointed to each one additions that didnt always inure to the nations benefit. In 1869, after a Congress hostile to Andrew Johnson had actually cut seats to prevent his filling them, the Circuit Judges Act fixed the high bench at nine seats, a number that has survived 150 years and allowed the court to gain stability and prestige.

The most famous example of attempted court packing is, of course, the Judicial Procedures Reform Bill of 1937. Fresh off a massive reelection and unhappy about a series of rulings against his New Deal programs, President Franklin Delano Roosevelt proposed adding a new justice for every sitting justice older than 70, up to a maximum bench of 15. The plan met heavy, bipartisan resistance and faced public opposition even from Vice President John Nance Garner and Roosevelt ally Justice Louis Brandeis. The plan led to enormous Democratic losses in the 1938 midterms.

No real calls for court packing have come between FDRs time and now, though there were calls to Impeach Earl Warren in the Jim Crow South. As with most such proposals in our history, the partisan appeal is both evident and heavy-handed.

Yet theres nothing inherently ideological about a larger Supreme Court. Presidents of both parties nominate however many justices there are. In addition to issues of judicial administration maybe the court could hear more cases with more personnel there would be less significance to each of, say, 19 seats than 9 (and presumably fewer decisions with one-vote margins), so there would be less of a battle royal over each vacancy. The problem comes in getting to the new number, whatever it is. If we were passing the first judiciary act, we could implement whatever structure we thought best. But were not, so how do you get to an expansion of any kind that wont result in a similar expansion the next time the opposing party is in power?

Presumably youd need a transition period, such that the reform only takes effect far enough into the future that we dont know wholl be in the White House. Politicos tend to be risk-averse, so Im not sure this is viable, but even if a delayed packing plan went through, it wouldnt address the complaints of those who want the court changed now, rather than some hypothetical time in the future.

Moreover, its unlikely that the judicial reform commission, if it truly represents the range of expert opinion, would agree on much. If a major proposal somehow came out of it, a 50-50 Senate where key Democrats Joe Manchin and Kyrsten Sinema have ruled out eliminating the filibuster would make it a nonstarter. Even adding (or moving around) lower court judges, given the growth in cases in some parts of the country since district judgeships were last created in 2002 and circuit judgeships in 1990, would be a hard lift because Republicans want not to repeat the late 1970s, when Jimmy Carter got scores of new robes to fill which turned out to be a consolation for not having any Supreme Court vacancies on his watch.

If Democrats think theyd be uniting the country by compensating for Republicanappointed justices they consider to be illegitimate, then they deserve the political losses that such endsjustifythemeans radicalism has historically caused. And if they think that packing the court would restore norms, then they really dont understand the nature of governance. To quote Bernie Sanders, of all people, My worry is that the next time the Republicans are in power they will do the same thing.

Underlying both the standard and creative court-packing proposals is a problem with the proponents premise: that the court needs reforming in the first place. The court isnt in crisis, but progressives and especially legal elites are very unhappy with its nascent conservative majority. And yet the Supreme Court is more respected than any federal institution save the military, and more popular than its been in over a decade. Toning down judicial confirmations and having justices seen less through partisan lenses are laudable goals, but theyll only be reached when the court itself is less important. Dont rebalance the court, rebalance our constitutional order so Washington and, within Washington, the executive branch isnt making so many big decisions for such a large, diverse, pluralistic country.

In the end, Democrats ought to draw a less-obvious lesson from FDRs experience. By mid1941, just four years after court packing failed, only two justices remained whom Roosevelt hadnt appointed and one of those, Harlan Stone, he had elevated to chief justice. In a very real sense, then, FDR packed the court the oldfashioned way, by maintaining control of the White House and Senate and waiting for natural attrition. Joe Biden, take note.