supreme court
Credit: Der Berzerker/Flickr

Progressives have had it with the Supreme Court. Last week was a breaking point: a flurry of 5–4 decisions where the Court’s conservative wing systematically advanced the Republican Party’s agenda from the bench, from decimating public-sector unions to kowtowing to President Trump’s travel ban to sustaining Republican gerrymanders that water down the voting power of the Democratic base. Then, in a coup de grace, Justice Anthony Kennedy affectionately wrote to his “dear Mr. President” announcing his retirement, gift-wrapping Trump and Senate Republicans the chance to cement a conservative majority on the Court for decades.

It was a week where the Court dropped its nonpartisan veneer and showed its true colors through and through. And with the Court no longer bothering to hide its partisan stripes, many progressives are meeting it head-on, advocating for the next Democratic president to pack the court by adding at least two new Supreme Court seats. “Abolish the Roberts Court” is quickly becoming the new “Abolish ICE.”

Here’s how it would work: The Supreme Court has been comprised of nine justices for over a century. But that number is not enshrined in the Constitution. Instead, it is set by statute. A simple majority in Congress (probably with a change to the Senate’s filibuster rules) could pass a new law changing the number of seats on the Supreme Court. The president would then immediately get to fill those new vacant seats, with the Senate’s advice and consent.

So, to illustrate, if a Democratic president took office in January 2021 with Democratic majorities in Congress, he or she could sign a law passed by Congress adding two new seats to the Supreme Court, and then promptly fill those seats. That would give liberals a 6–5 advantage on the reconstituted Supreme Court.

It’s a bold act of political hardball. But there are good reasons for Democrats to keep court-packing on the table for 2020. Democrats may need to pack the Court to save it.

We live in a constitutional democracy. The presidency and Congress are popularly elected branches of government. The Supreme Court, on the other hand, is supposed to be more independent and insulated from the vagaries of popular will. But it’s not quite that simple. The Court is inherently a political animal because its justices are nominated and confirmed by the other two (political) branches. And legal scholars have long recognized the role that popular opinion and social movements have played in influencing some of the Court’s decisions. The Court’s legitimacy depends on it not growing too misaligned from mainstream views and consensus.

Yet today’s Court is dangerously out of sync with the rest of the country. If Trump’s nominee to replace Justice Kennedy is confirmed, four of the Court’s justices will have been appointed by presidents who lost the popular vote. (And that number could yet increase if Trump gets any more vacancies to fill.) One of those Republican-appointed justices was the product of an unprecedented heist from a twice popularly elected Democratic president. Even though more people have voted for Democrats than Republicans in six of the last seven presidential elections, conservatives have still retained an stranglehold over the Supreme Court.

Even worse, at least two of the Court’s nine justices will have been appointed by Trump while he’s caught up in the investigation into potential collusion with Russia to swing the presidential election. The specter of Trump’s illegitimacy taints our current Supreme Court.

Expanding the size of the Court under a Democratic administration would cure the growing imbalance between the Court and our democracy. The politics of such a maneuver might be messy and divisive in the short run. But in the long run, restoring an ideological balance to the Court that better reflects where the country stands is necessary to protect the Court’s legitimacy. Just like the Very Serious People who (baselessly) insist our leaders must swallow the political pain of austerity to protect the future of the country’s finances, a strong and far-sighted progressive leader must (actually) reform the Court for the country’s long-term good.

This is entirely in keeping with the Constitution’s system of checks and balances. The Constitution gives the president and Congress levers over the Court to provide direct democratic accountability. The president and Senate have a check over the Supreme Court by making appointments to fill vacancies. But Congress as a whole — including the House, the most democratic chamber — has a check on the Court by adjusting its size. This gives the popularly elected branches of government another way of holding the Court accountable. If Congress categorically refuses to use this power, then it has tied its own hands and atrophies its duties under the Constitution.

Early in the country’s history, the first Congresses were quite willing to wield this check over the Supreme Court. Congress originally set the size of the Supreme Court at six justices. After the Federalists lost the 1800 election, the lame duck Federalist Congress shrunk the size of the Court to five to deny Thomas Jefferson, the incoming Democratic president, an appointment. The new Democratic Congress then repealed the measure and wound up increasing the size of the Court to seven in 1807, giving Jefferson an extra appointment.

This Supreme Court yo-yoing continued throughout much of the nineteenth century. Congress later increased the size of the Court to nine in 1837 to give President Andrew Jackson two new appointments. And during the Civil War, the Republican Congress increased the Court again to ten justices to guarantee it had a pro-Union, anti-slavery majority. When Democrat Andrew Johnson assumed the presidency after Lincoln’s assassination, Congress reduced the size of the Court to seven to deny Johnson any appointments. And when Ulysses S. Grant succeeded Johnson in 1868, Congress increased the size of the Court to give him two new justices to appoint.

The most infamous court-packing attempt was President Franklin Roosevelt’s failed effort to add new justices in 1937. Facing a conservative Supreme Court that batted down his Depression-era relief measures, Roosevelt wanted to add as many as six new justices to the Court. Roosevelt’s ham-handed effort fell flat. It was too cute by half, adopting the pretext that new justices were needed to lighten the workload for an increasingly geriatric Court. Congress rebuffed FDR’s initiative, and the plan quickly died. But the president’s constitutional hardball proved to be an effective brushback pitch nonetheless: Justice Owen Roberts soon switched sides to preserve a nine-justice Court, and began siding with the liberal justices to uphold New Deal legislation.

FDR’s court-packing gambit was the last attempt at altering the size of the Court — until Senator Mitch McConnell successfully did it sub silentio in 2016. By refusing to consider President Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia, McConnell effectively wielded the power of the Senate to shrink the size of the Court. In fact, McConnell—and Republican senators Ted Cruz and Richard Burr—openly planned to keep the Court at eight justices indefinitely if Hillary Clinton had won the 2016 presidential election, a bald-faced plan to unravel the Court by attrition — at least under Democratic presidents. McConnell only returned the size of the Court to nine justices after President Trump took office.

McConnell’s heist cannot go unanswered. It’s true, the judiciary wars have been escalating for years, and with both parties doing their part. But if Democrats blink now, they lose. Tit-for-tat is far from ideal, but unilateral disarmament is worse.

Restoring the Supreme Court to democratic legitimacy in 2020 will not be easy. For one, Democrats will need the presidency and strong majorities in each chamber of Congress. This speaks to the scale of resistance and change that will be needed to clean up after the Trump presidency. Undoubtedly, pundits will gnash their teeth over fears that the Court will be diminished by Democrats playing some hardball of their own. But the ongoing presence of Justice Neil Gorsuch on the Court — in a stolen seat, while hobnobbing with McConnell and giving speeches at Trump Hotels — is evidence enough that the institutional standing of the Court can withstand even the most shameless politicization.

When FDR announced his court-packing plan in 1937, he said, “We have…reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself.” Come 2021, we may very well have reached such a point again. As progressives work to build a new and lasting majority, they cannot neglect institutional reforms. Expanding health care access, making the economy fairer, and curtailing climate change are all too important to the general welfare to be roadblocked by a reactionary Supreme Court.

If they win back power in 2020, Democrats cannot flinch from doing what needs to be done to correct the imbalances on the Court. Two seats for the people in 2021.

Joel Dodge

Joel Dodge is a writer and attorney in New York City. His work has appeared in Quartz, The Week, The New Republic, and The American Constitution Society.