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Supreme Court packing via a Democratic bill will politicize the system even more

Adding seats to the high court would formalize the body's transformation into a social issues super legislature to the detriment of the republic.
Image: Chairs of U.S. Supreme Court justices sit behind the courtroom bench in Washington on July 9, 2019.
The chairs of the U.S. Supreme Court justices sit empty behind the courtroom bench in Washington on July 9, 2019.Andrew Harrer / Bloomberg via Getty Images file

The bill could have been named the Merrick Garland Revenge Act. Instead, Democrats have introduced the tamely titled Judiciary Act of 2021 in a bid to expand the Supreme Court from nine justices to 13 to take advantage of their majorities and add some liberals to the nation's highest court.

Democrats haven't let fears of politicizing the court stop them in the past. History didn't begin with Merrick Garland.

Rep. Jerry Nadler, the New York Democrat who chairs the Judiciary Committee, describes it as "unpacking" rather than "packing" the court, since the latter is a pejorative term applied to the last time a president tried to expand the court to change its ideological balance.

Nadler's case runs as follows: Senate Republicans refused to give Garland, now the attorney general, a hearing when President Barack Obama nominated him to replace Justice Antonin Scalia, who died suddenly during an election year.

Senate Republicans then eliminated the filibuster for Supreme Court nominees once Donald Trump won the presidency so he could fill the next vacancy with a simple majority, as opposed to the previous 60-vote threshold. This procedural move enabled them to quickly confirm Neil Gorsuch and then get Brett Kavanaugh through despite a contentious nomination that featured sexual assault allegations leveled by Christine Blasey Ford. Finally, Ruth Bader Ginsburg died in an election year this fall, after which Republicans promptly confirmed Amy Coney Barrett.

Those appointments left conservatives with a 6-3 majority on the Supreme Court, with three justices nominated by Trump, a president who had lost the popular vote, and at least one seat regarded by many progressive activists as "stolen."

Republicans absolutely had the constitutional authority to confirm Gorsuch, Kavanaugh and Barrett. Democrats now have the constitutional authority to increase the number of justices.

But it's still a bad idea.

The Supreme Court has stood at nine justices since 1869, the entirety of modern American political history, even though the precise number isn't fixed by the Constitution. A fluctuating number of Supreme Court seats after more than 150 years of stability, amid increasingly frequent changes in partisan control of the Senate, would formalize the court's transformation into a social issues super legislature to the detriment of the republic.

The court's democratic legitimacy as the final arbiter of deeply divisive policies and our most sacred rights — often defending them against the actions of the elected branches — relies on a reputation for impartiality. Turning it into a super legislature would make it more partisan in perception and reality, deepening the confusion of the legislative and judicial functions as both parties jockey for position on an unelected body that makes major decisions about how we are governed.

It would also threaten what remains of judicial independence — the idea that even if there are differences in judicial philosophy and approach, the courts are engaged in an enterprise that is fundamentally different from and not bound by partisan politics. Such independence remains important, as demonstrated in recent months when Trump's judicial appointees didn't behave as some liberals predicted and rule in favor of his election challenges. Their allegiance to the law over party safeguarded the vote for Democrat Joe Biden.

Indeed, judicial decisions aren't supposed to be exercises of raw political power. But Congress' micromanaging the size, and through it the ideological composition, of the Supreme Court would increase the influence of politics over the third branch of government, not decrease it.

And decisions like Bush v. Gore—perceived by liberals as the installation of a Republican president by the court's conservative bloc when the court split along partisan lines to stop challenges to George W. Bush's 2000 win in Florida — would become more likely rather than less. After all, the court itself would have a larger stake in electoral outcomes if election winners regularly altered its makeup by adding seats for political advantage.

The court expansion bill is unlikely to pass because Democrats seem to lack the votes in the Senate, especially as long as the filibuster remains intact for legislation. But it could still influence the court's decisions. Roberts is already widely regarded as a strategic voter who sometimes sides with the liberal bloc to protect the Supreme Court as an institution. Will he do so more frequently to avoid expansion?

Unfortunately, Democrats haven't let fears of politicizing the court stop them in the past. History didn't begin with Merrick Garland. It was Franklin Delano Roosevelt who tried to enlarge the Supreme Court — in his case so he could implement New Deal policies that conservative jurists believed to be unconstitutional.

And it was Democratic senators who turned confirmation battles into political land mines. After unanimously confirming Scalia in 1986 (though putting up a great deal more resistance to conservative William Rehnquist's promotion to chief justice), they began to worry about the security of certain liberal precedents — especially the Roe v. Wade decision legalizing abortion. The following year, they feared that President Ronald Reagan's latest nominee, Judge Robert Bork, might be the key vote to overturn Roe.

Democrats savaged Bork and rejected his nomination. The case against Bork rested heavily on ideology and judicial philosophy, as opposed to his competence and qualifications, which weren't in doubt. In conservative circles, his surname became a verb synonymous with the vilification of a nominee.

The consensus choice of Anthony Kennedy was confirmed in Bork's place — achieving Democrats' apparent objectives, as he went on to supply the key vote in upholding Roe. Clarence Thomas was next. His confirmation would switch a seat from the liberal to the conservative bloc, as he was nominated to succeed civil rights icon Thurgood Marshall. The vicious fight against him included salacious accusations of sexual harassment by former staffer Anita Hill. He prevailed in a narrow 52-48 vote to become the second Black justice.

Senate Republicans still overwhelmingly supported both of President Bill Clinton's nominees after these fights. Stephen Breyer was opposed by only nine GOP senators; Ruth Bader Ginsburg, the more liberal of the two, by just three. The first nominee many of them mobilized against was actually Bush's choice of Harriet Miers, which was withdrawn when conservatives objected to her qualifications and judicial philosophy.

The Democrats, however, were undeniably partisan in their confirmation votes. Half of Senate Democrats opposed Bush's nomination of Roberts. Only four Democrats voted for Samuel Alito, while 24 of them voted to filibuster him — including Sens. Obama, Biden, Hillary Clinton and John Kerry. In fact, after Bush v. Gore, some liberals forthrightly argued that the conservative bloc should be denied any reinforcements even if that meant leaving seats vacant.

Turning it into a super legislature would make it more partisan in perception and reality, deepening the confusion of the legislative and judicial functions.

It is in this context that Republicans massively ratcheted up their approach to judicial nominations under Obama and Trump. Why would that change if Democrats passed their court-packing scheme? If anything, the next Republican majorities — which could come as soon as 2023 if recent midterm election history is any guide, especially given the narrowness of the Democrats' current margins— could do some packing of their own.

Previous escalations of the Supreme Court wars have taken Democrats from a place where Mitch McConnell voted to confirm Ginsburg to one where he wouldn't grant Garland a hearing. Those who would like to instead lower the temperature of Supreme Court nomination fights and see the judiciary as a less politicized branch of government should be aware that expanding the number of justices would accelerate every trend it is allegedly supposed to counteract.