When Mitch McConnell refused to hold a hearing after President Barack Obama nominated Merrick Garland to fill Antonin Scalia’s seat on the Supreme Court, it ended any illusions that the Court is a nonpartisan body. While the confirmation process used to be uncontroversial and nonpartisan—one hundred percent of Senate Democrats voted to confirm Scalia in 1986—the votes now break down largely along partisan lines. Only one Democrat voted to confirm Justice Brett Kavanaugh.
But McConnell’s refusal to give Garland a hearing was unprecedented. Democrats have a valid claim that the seat‚ ultimately filled by Neil Gorsuch, was stolen.
In their desire to rectify that injustice, many Democrats are now lobbying to pack the Supreme Court—to raise the total number of judges from nine to eleven, thirteen, or fifteen, and then fill those new seats with left-leaning judges to shift the Court’s ideological balance back in their favor. New York Times columnist Jamelle Bouie framed court packing as the best way for Democrats to play hardball and get even “for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations.” Many Democratic presidential candidates, including Cory Booker and Kamala Harris, have suggested they are at least open to the idea.
The appeal of court packing is clear. With a new ideological makeup, the Supreme Court would likely become open to rulings that would effectively end partisan gerrymandering, reign in runaway campaign spending, and thwart the GOP attack on women’s reproductive rights. McConnell essentially reverse court packed to keep Garland from ascending the high court, so why shouldn’t Democrats try to beat Republicans at their own game?
But although packing the Court may be the most tempting response to McConnell’s gamesmanship, it is not a viable long-term solution. If Democrats engage in the same type of tactics, it will almost inevitably escalate the problem rather than alleviate it. Republicans would pack the Court in their favor in response to Democrats. Back and forth we’d go until the Court is no longer a check on the other two branches of government, but just another extension of the party currently in power. Perhaps it already is. So, if we are going to go to the trouble of changing the Supreme Court, we should think bigger than court packing. We should fix the Court and the confirmation process for good.
There are a few primary problems with how the Court currently functions. First, with only nine justices on the Court, and many critical opinions being decided by a slim five to four majority, each individual justice has too much influence. One justice replacing another can significantly alter the Court’s ideological balance, leading to troubling inconsistency and uncertainty on many major issues.
For example, in the 1990 decision Austin v. Michigan Chamber of Commerce, the Court held that it was permissible to prevent corporations from spending general treasury funds to support or oppose political candidates in elections. After that decision, Congress and many state legislatures enacted restrictions on corporate political spending with confidence that such restrictions were constitutional. But just twenty years later in 2010, the Court unexpectedly overruled Austinin Citizens United v. FEC, holding that corporations and unions can spend unlimited amounts of money to influence elections. Not only did Citizens United overturn previous precedent and invalidate many state laws, but most alarmingly, the Court decided to overrule Austin on its own. The petitioner did not even ask the Court to rule on the question that Austin had already decided. And of course, the only thing that changed between 1990 and 2010 to justify such disparate decisions was the composition of the Court.
Because every Supreme Court justice is so important and their votes can have a significant impact on campaign finance law, Second Amendment rights, other issues, the appointment and confirmation of justices has adversely affected the other two branches of government in ways that were never intended. In presidential and congressional elections, voters may not like their party’s candidate, but nonetheless feel compelled to support them to ensure that the opposing party does not get to appoint the next Supreme Court justice. In the Senate, ugly confirmation fights drive two political parties that are theoretically supposed to be working together even further apart.
Furthermore, because justices are appointed for life, presidents are encouraged to appoint ideologically extreme justices to ensure that they will reliably side with the president’s political party on contentious issues. After George H.W. Bush appointed David Souter, who eventually became a reliable liberal vote to the consternation of many Republicans, presidents are not taking chances any more. They appoint justices whose political allegiances are crystal clear.
Fortunately, there are solutions to these problems. A long-term strategy might involve limiting the length of justices’ terms to ten years, or even having justices chosen out of a pool of qualified candidates via lottery. That would significantly diminish the impact of any single justice, incentivize deference to precedent, and eliminate the problem of justices being an ideological extension of the presidents who nominated them.
Of course, that would require a constitutional amendment, but there are other positive changes that could be implemented immediately. The Judiciary Act of 1869 set the number of justices at nine. New legislation could increase that number to thirteen or fifteen. That would make each individual justice would be less influential. In addition, the Senate could raise the threshold for confirmation to 75 percent of Senate votes to ensure that every justice would need bipartisan support to get confirmed. If those two reforms were enacted together, it wouldn’t be partisan court packing; it would be a permanent safeguard against ideological extremism. At the same time, it would encourage bipartisan compromise. There might need to be an enforcement mechanism to ensure that seats were not left vacant for too long, but most Americans would likely be thrilled to see Senators working together instead of continuing their ceaseless tug of war.
Certain segments of the progressive base are likely to argue that Democrats going high when Republicans go low is unilateral disarmament. The stakes are too high, they might insist, to not do everything possible to move the Court leftward.
Reasonable minds can disagree. But Democrats stand more to gain by protecting our institutions in the long run than by temporarily gaining control over those institutions through the same gamesmanship than has degraded them.
Doing what is right instead of what is politically advantageous is supposed to be one of the things that separates Democrats from Republicans: Democrats are trying to make it easier for citizens to vote while Republicans making it more difficult; Democrats are trying to get big money out of politics while Republicans are defending the status quo; Democrats are trying to protect our elections from foreign interference while Republicans are inviting it.
Perhaps it’s naïve to think we still live in a country where the electorate will reward integrity, but it would be enlightening to find out. Supporting a nonpartisan plan to fix the Supreme Court is a way that Democrats can show voters they care more about protecting our institutions rather than merely controlling them.