Yesterday, somewhat unexpectedly, a group of congressional Democrats led by Massachusetts Sen. Ed Markey and New York Rep. Jerry Nadler introduced a bill to expand the size of the Supreme Court from nine Justices to thirteen. (The text of the bill, available on Markey’s website, is supremely simple. It changes the size of the Court from “a Chief Justice of the United States and eight associate Justices” to a Chief + twelve associates) .I say unexpectedly because only last week, Biden set up a commission to study the question of court reform, and it’s a little weird to preempt that with this bill. Of course it doesn’t sound like leadership is especially on board with the bill, at least not before the commission chimes in.
But for what it’s worth, Markey and Nadler have exactly the right idea — so far as it goes. We should be adding new seats, and four is the number of seats we should add. By now I think the rationale is pretty well-worn. It all goes back to the Republican-controlled Senate’s decision not to give Barack Obama’s nomination of Merrick Garland to fill the late Antonin Scalia’s seat in 2016 so much as a hearing, let alone a vote. Mitch McConnell and the other Republicans justified that on the grounds that, although the vacancy arose in February, it was already too close to the presidential election in November to fill the seat.
This never made a lot of logical sense, and it wasn’t supported by historical precedents. And it was also clearly bullshit: in the weeks leading up to the election, in which Republicans had claimed the American people would choose who they wanted to replace Justice Scalia, they started saying that if Hillary Clinton won the election (which seemed extremely likely at the time), they would work to ensure that she never got to fill the seat during her entire four-year term. So much for that.
Now, some of us started calling for court-packing from the moment McConnell’s gambit worked, and Scalia was replaced not by Garland but by Neil Gorsuch. (In fairness I didn’t call for it very loudly haha, just in private conversations and such.) But perhaps in part because there were more important things to worry about while Trump was president, the idea never really caught on… until Justice Ginsburg died less than two months before the 2020 presidential election and the Republican Senate, still led by Mitch McConnell, predictably broke the land speed records to confirm Amy Coney Barrett to the vacant seat by mid-October. That got the Democrats mad, and made court “reform,” as we’re politely supposed to call it, a real part of their agenda and something the party base is actively demanding. And now that we’re in power it’s time to do something about it… or at least to think about doing something about it.
The thing that rankled the Democrats so much was the hypocrisy: if February 2016 was too close to the election to confirm Garland, how was October 2020 the right time to confirm Barrett? Now this has in turn led to a question, raised today for instance by Orin Kerr, of why the remedy should be adding four seats. After all, if the charge is hypocrisy that suggests that Republicans were within their rights to fill one of the seats in question, though not both. There are a couple of reasons why that’s not right.
First, it doesn’t actually follow that the Republicans were entitled to at least one of the two seats. Rejecting McConnell’s argument as to Garland needn’t mean saying that there are no temporal limits on when an outgoing president may properly fill a vacancy. If a Justice were to die on January 19th, for example, I think we would mostly think that the outgoing president ought not rush to fill that seat in the one day before their term expired, even if the Senate were to cooperate. John Adams famously signed judicial commissions until the very moment when his term expired in 1801, and these “midnight judges” raised considerable outcry. Of course nothing about midnight judges is illegal, but then neither is court-packing: the questions are all about the proprieties, and what one party’s violation thereof makes it proper for the other party to do in return.
Anyway, the point is that if we think midnight judges are improper, then we might extend that idea through the whole of the “lame-duck” period, and it’s not much of a stretch to extend it back further still, say to cover the active portion of the presidential campaign — traditionally thought to begin on Labor Day. That isn’t to say that that is necessarily the correct rule. But it’s a plausible rule, and it would suggest that both the Garland and Barrett decisions were wrong. Indeed, Barrett was confirmed when the election itself was long since underway, and tens of millions had already voted. There’s simply nothing implausible in thinking that both situations should have favored the Democrats’ position.
But that’s not really the point. Neither the Garland decision nor the Barrett decision was actually motivated by any sort of principled view of when it is or isn’t proper to replace a Justice in an election year. They were actuated by the firm belief that the Democratic Party should be prevented from exercising political wherever possible, including when they have won elections. The talk about keeping the seat open through four years of Hillary gives the game away. So does McConnell’s explanation for the flip-flop with Barrett, namely that the “Garland Rule” only applies when the Senate and the White House are controlled by different parties. That’s nonsense; it reduces to “we didn’t confirm Garland because we didn’t want to.” And more specifically “because we didn’t want to let Obama fill the seat,” since none of the objections were to Garland himself. (Indeed, if we presume that the voters who elected that President and that Senate wanted them to work together to fill any judicial vacancies that might arise during their terms, Garland is exactly the kind of compromise pick they might have come up with — which is why Republicans were so anxious not to engage on the merits.)
We also see the same principle — “never let Democrats hold or wield power if you can help it” — play out over and over again at the state level. Never even mind the voter suppression stuff, which is this ideology in its purest form. Again and again we see Democrats winning some statewide executive office — often governor, but not always — and Republican legislatures responding by stripping that office of some or all of its power. And of course they routinely pack state supreme courts whenever it’s convenient to them! A few years back they impeached the entire West Virginia state supreme court so the newly-Republican governor could appoint a whole new bench!
This stuff is anathema to a free republic. It directly countermands the right of the People as sovereign to choose who they want to hold office and thereby to exercise power on their behalf. And it must be extirpated. I would really like to see some sort of federal solution to the state-level power grabs, though that’s not straightforward. If I were Supreme Chancellor I would just start holding these power-stripping laws a violation of the Guarantee Clause as inconsistent with republican government, but I’m not gonna hold my breath. And designing a legislative solution sounds kind of tricky.
But! There’s no nuance what to do about the Court. The fascist principle that the Democratic Party may never wield power has contaminated the Supreme Court of the United States. That renders the Court illegitimate. And since the Court is itself more than slightly important to maintaining the legitimacy of the entire constitutional order, the entire American state is infected.
Court-packing is the only solution. Two seats were filled on the basis that the Democratic Party may never exercise power. The just and appropriate remedy is for the Democratic Party to exercise the very power it was denied. That the bill functions as a partisan power grab is a feature, not a bug, even from a neutral, institutionalist perspective. Though we often think of it as “countermajoritarian,” the Court can and must be a democratic institution in that it is created, maintained, and staffed through the democratic process. McConnell has severed that link between the people and the Court, damaging its legitimacy; to heal that wound, the Democratic Party must seize the power that was unjustly kept from it.
Ideally that would mean vacating Justice Gorsuch and Barrett’s commissions and letting Biden replace them, but that’s not really on the table. And failing that, in order to put the Court in its rightful position we need to retaliate two-for-one: one new Justice to cancel out the vote of each illegitimate appointment, and one more to fill their now-effectively-vacant seat. Two illegitimate seats, four new Justices. That’s exactly what Markey and Nadler propose, and they are quite right.
There’s another point on which they should be commended — and Biden as well. They did not wait for the Court to issue some reprehensible decision before introducing this bill, and Biden did not wait for that to create his commission. That is a meaningful political sacrifice: the outrage over such a decision could put wind in the sails of their “reform” effort. But by not waiting, the Democrats make clear that their actions are not meant to discipline the Court itself, or to interfere with its independent judgment. Rather they are meant to remedy structural problems that were created not by the Court but by the Senate. If this is retaliation, it is retaliation against Mitch McConnell, not John Roberts — not even Neil Gorsuch. I have to admit I’m kind of surprised that they’ve moved proactively here, and I’m quite impressed by it.
But I do wish there were a little more text in the proposed Judiciary Act of 2021. I wish it would specify that the Court would return to nine Justices over time by attrition — i.e., by not filling new vacancies when they arise. This process might be set to begin in a few years, allowing Biden to replace Justice Breyer when he (hopefully) retires this year. Why bother with attrition? Again it’s to link the expansion to the specific events of Garland and Barrett. We have no abstract reason for wanting a larger Court, for throwing out over a century of the tradition of nine: rather, the point is that a specific harm has been done and demands a specific, limited remedy.
People are trying to make various arguments in favor of a larger Court, but they don’t hold water. It’s true that 19th-century changes in the size of the Court were linked to the creation of new federal circuit courts, and that there are thirteen such circuits today. But the two were linked because of the practice of Supreme Court Justices “riding circuit.” Once that was abolished, there was no reason for a link. Similarly, people have tried to connect expansion of the Supreme Court with adding new judges to the lower federal courts, as a consequence of the growing size of the country and increased litigation volumes. But unlike in the lower courts, every member of the Supreme Court sits on every case that the Court hears. That means that increasing the Court’s size does not reduce its effective workload.
And attrition back to nine has another virtue: it helps at least create a pathway out of the constant escalations in the Judiciary Wars. One of the things people say against court-packing is that it will never end. The next time Republicans are in power, they’ll add enough Justices to control the Court again, and so on. Now plenty of people have pointed out that “whichever party takes full control of Congress and the White House also gets to control the Court” is a better rule than “Republicans always control the Court,” and that’s true. But it also does undermine the role the Court is meant to play in the constitutional scheme as a meaningful check on the government, much as the House of Lords was neutralized by the threat to add new lords.
And what I would like to see is attrition as a gateway to a constitutional amendment that would end the Judiciary Wars for all time. I have my own ideas for what that would look like, but the important thing is that it should (1) fix the size of the Court directly in the Constitution, rather than leaving it up to Congress; and (2) reform the confirmation process to ensure that the Garland fiasco never repeats itself. There’s also a lot of support for changing life tenure, which would fit in nicely here: it helps reduce political games with the Court by reducing the ability to game the timing of vacancies.
Regardless of exactly what form it takes, I’d like to see the Democrats introduce an amendment like this at the same time that they pass the court-packing bill. It would function as a peace treaty of sorts. Of course it’s important for the amendment to come after the court-packing: we’re in no position to set the terms of the peace if we don’t first win the war itself. But the mere act of offering peace terms will also help confirm that our goal is to repair the Court as a powerful and independent institution, not simply subjugate it to our partisan will.
But, first things first. I’m pleased with what we saw yesterday. It’s a good start.