The Case Against Court Packing
In two consecutive debates, a member of the Biden-Harris ticket has refused to forswear packing the court. Their waffling seems to be about as moderate a position on the issue left to be found in the Democratic party. Senators Ed Markey of Massachusetts and Mazie Hirono of Hawaii have both actively called for Democrats to pack the court if they take back the Senate and the Presidency. Chuck Schumer, Nancy Pelosi, Elizabeth Warren, and Alexandria Ocasio-Cortez have all expressed a willingness, if not a commitment, to seriously consider court packing. Aaron Belkin, founder of pro-court packing organization Take Back the Court, claims, in an interview with The Atlantic, that 11 former Democratic presidential candidates have done the same, while 17 major progressive organizations have explicitly advocated for the move. Before Democrats impulsively adopt court packing as a party orthodoxy, they would do well to seriously consider the destructive long-term consequences of such a move.
My opposition to court packing does not come from a place of deep principle. I do not plan to argue that adding Justices to the court would, in and of itself, constitute an assault on democracy. I appreciate, and even partially agree with, the pro-democratic argument for adding Justices as a remedial step to counteract the unprecedented and brazen moves by Mitch McConnell’s GOP to fill the court with conservatives. Still, I’m convinced that court packing would be a tremendous strategic error, escalating a manageable crisis into an existential one. The core of the case against court packing hinges on the near inevitability that the GOP would eventually retaliate by counter-packing the court in response, precipitating a back-and-forth series of court packing moves that would be far worse than a stable 6-3 conservative court majority.
Does anyone seriously doubt that Mitch McConnell, one of the most amoral and effective political operators in Senate history, would retaliate by packing the court in suit?
Imagine that newly empowered Democrats choose to add two new justices to the Supreme Court, one to counteract the seat taken from Merrick Garland and one to counteract the seat previously held by Ginsburg. As reasonable as this may seem to many Democratic voters (and perhaps even rightly so), Republicans will no doubt strike a less conciliatory tone. They will condemn the move as a corrupt power play, accusing Democrats of stealing the Supreme Court, just as Democrats now accuse Republicans. A large part of the public will certainly agree with the Republicans – only 34% of voters supported court packing in a recent YouGov poll.
The next time Republicans take power, they are all but certain to add more Justices themselves. Does anyone seriously doubt that Mitch McConnell, one of the most amoral and effective political operators in Senate history, would retaliate by packing the court in suit? For anyone who does question the GOP’s retaliatory instincts, look no further than the filibuster. When Democrats eliminated the filibuster for most judicial nominees in 2013, Republicans retaliated as soon as they regained power, eliminating the filibuster for Supreme Court Justices to push through Gorsuch’s confirmation.
Instead of denying that the GOP would counter-pack the court if they regained power, some court packing advocates argue that they’ll never get a chance. After all, packing the court requires a federal trifecta (single party control of the Presidency and both chambers of Congress). These trifectas are more common than one might think; the last President who did not enjoy a trifecta was George H.W. Bush. If the future looks anything like the past, the GOP will have their chance to counter-pack the court within a decade.
Belkin, anticipating this argument, makes the case that Democrats can essentially lock the GOP out of power by passing anti-gerrymandering reforms and granting statehood to DC and Puerto Rico, since the GOP represents a clear minority of the overall electorate. The problem with this point of view is that Republicans enjoy structural advantages that Democrats cannot simply wipe away without a series of Constitutional amendments. Even if Democrats grant Puerto Rico and DC statehood, the Senate would still favor Republicans by four-and-a-half points, according to FiveThirtyEight. Nor can gerrymandering reform eliminate the GOP’s structural advantage in the House: Jowei Chen and Jonathan Rodden’s research on the political geography of legislative districts suggests that Democrats’ concentration in cities would grant Republicans an advantage even if districts were drawn using politically impartial criteria. The Democratic platform does not even attempt to counteract the Electoral College’s three-point Republican lean. Nothing Democrats could do, even with new legislation and a friendly Supreme Court, can permanently prevent the GOP from winning elections. While fantasizing about a Democratic dynasty that permanently ends the GOP might be comforting, basing an incredibly consequential policy decision on that naïve dream would be incredibly irresponsible.
Perhaps a case for court packing that acknowledges the inevitability of GOP counter-packing could still be made on the grounds that a 6-3 conservative majority would be worse than back-and-forth court packing. Belkin argues that “it would probably take a generation—25 or 30 years—for the Democrats to get the majority on the Supreme Court back. If the Republicans steal the court, then the Democrats un-steal it. And if the Republicans steal it again, then the Democrats un-steal it again. It’s much better to have that zigzag than to just have unilateral surrender.” This case both understates the risks of zigzagging and overstates the risks of a 6-3 majority in the current system.
A “zigzag” of back-and-forth court packing would end three-branch rule in the United States. Under a “zigzag” system, the control of the court would correlate perfectly with control of the political branches. Both Republicans and Democrats would be increasingly likely to nominate and confirm partisan ideologues as the court’s veneer of nonpartisanship collapsed. These nominees would be handpicked for their support of their parties’ legislative agenda, giving both Republican and Democratic majorities nearly free reign to pass whatever legislation they wished. Constitutional limitations on legislation would become practically impotent, as Justices would only make it to the court if they had expressed a willingness to uphold the legislative agenda. Even if the court did occasionally attempt to strike down legislation, its legitimacy as a neutral arbiter may become so deeply eroded that the political branches may no longer feel obliged to abide by Supreme Court decisions. A fully politicized court lacking legitimacy would likely become so ineffective that judicial review in the United States might functionally cease to exist.
A court counter-packed with an unpredictably large and nakedly political GOP majority might have no inclination to reign in such an attack on democracy, nor the political clout to do so even if it so desired.
This vision of the court’s future should be utterly terrifying. An independent court with strong powers of judicial review serves an essential role in preserving our democracy. The court serves as the primary bulwark against Congress and the President overstepping their mandates and infringing on people’s rights. Republican majorities might be truly free to abandon abortion rights, voting rights, and civil rights with a brazenness scarcely imaginable in the political status quo. Nor should Democrats be hubristic enough to see themselves as immune from the need for Constitutional checks, as confident they may be in the wisdom of their policy prescriptions.
Even beyond performing an irreplaceable role in protecting rights, an independent and legitimate court may well be needed in the near future to resolve a Constitutional crisis. As polarization escalates and the Republican party adopts increasingly authoritarian tendencies, the court may be the only body capable of preventing a wholesale seizure of power. A court counter-packed with an unpredictably large and nakedly political GOP majority might have no inclination to reign in such an attack on democracy, nor the political clout to do so even if it so desired.
By contrast, a 6-3 conservative majority on the court would be significantly less existentially dangerous. I don’t want to downplay the very real, catastrophic potential consequences of a 6-3 conservative majority. Religious exemptions to discrimination laws will be dramatically expanded, gun rights will be strengthened, and executive power will be even less restrained. Yet, for the most part, these dangers are categorically different from the danger of a zigzagged court. While a conservative court will no doubt pose many tangible threats, these threats will not be existential to the very future of democracy.
There are even reasons to be cautiously optimistic about a 6-3 conservative court. Take Roe v. Wade for example. In this year’s landmark abortion case, June Medical Services, LLC v. Russo, Clarence Thomas wrote a dissent that argued Roe should be overturned. Not a single Justice joined. Gorsuch, Kavanaugh, and Alito dissented from the pro-abortion majority, but they did so on limited grounds that would still preserve the fundamental right to abortion established in Roe. A 6-3 conservative court might uphold limited restrictions on abortion rights, and the impact of such restrictions should not be minimized, but the basic right to an abortion established in Roe is likely safe.
Nor would a 6-3 conservative Supreme Court be a significant impediment to the broader Democratic legislative agenda. Roberts consistently displays a strong desire to preserve the legitimacy of the court as a nonpartisan institution, and he would, most likely, push other conservatives to exercise caution. Gorsuch appears to be a genuinely committed textualist, willing to subordinate his political philosophy to his judicial philosophy as he did in Bostock v. Clayton Country, this summer’s landmark decision prohibiting employment discrimination on the basis of sexual orientation or identity. Even Barrett has written a lengthy academic legal paper advocating judicial restraint in striking down acts of Congress. These Justices seem unlikely to go out of their way to strike down waves of Constitutionally noncontroversial Democratic legislation. Fortunately, little of Biden’s platform sits in a Constitutional gray zone. For those policies that do, the court may strike down a few, but the future of the majority of the Democratic agenda likely does not depend on the makeup of the Supreme Court.
Proponents of court packing are right that a 6-3 conservative court will, in many ways, represent a dramatic step backward for the country. Progressives will very rarely succeed in using the court as a vehicle for creating change. Some victories of the past may be reversed. Democracy itself, however, will survive. Republicans have appointed 14 of 18 Justices since 1968. A conservative Supreme Court majority is the default, and the country has managed to survive since then. Court packing, however, represents a categorically different danger: an unprecedented, existential threat to the United States’ constitutional structure. While court packing may be an appealing short-term solution to the court’s conservative turn, Democrats would do well to adopt a long-term perspective. Can the party, or the country, really survive 50 or 100 years of back-and-forth court packing before democracy itself collapses?