2020 presidential candidate Pete Buttigieg had raised the idea court reform as a part of his platform. He has demonstrated interest in increasing the number of seats, or an appellate rotation plan. In this plan, the number of seats would be increased to 15 with five being filled by Democratic appointees, five by Republican appointees, and five chosen by the other 10 justices. In an interview, Buttigieg stated a need for:

“structural reform on the Supreme Court. Adding justices can be part of the solution but not in and of itself, it’s not enough. It’s neither necessary nor sufficient. What we’ve got to do is depoliticize it and one solution that I’ve been discussing in recent weeks is structuring it with 15 members but five of whom can only be seated by a unanimous consensus of the other 10.” [i]

Buttigieg’s discussion of court reform has resulted a wide range of reactions. Some believe it is a logical way in which to depoliticize the court. Others, however, note that the current ratio of justices (five appointed by Republicans, and four by Democrats) means that a justice picked by a Democratic president would be added before any justices chosen by a Republican president could be added. This means that, as pointed out by Stephen Carter in a Bloomberg Opinion piece,[ii] Republicans could win the next five presidential elections without the ability to appoint a Supreme Court justice. The action would breakdown the Republican majority in the Court. Buttigieg’s push for court reform has elicited criticism as being unconstitutional and encouraging the distinction between Democratic and Republican justices.

The criticism which pertains the most to the topic of democratic erosion, however, is that Buttigieg is essentially implying that the Democrats should court-pack. Buttigieg is espousing an action which would shift the balance of power in the Court away from the opposing party, under the guise of de-politicization. While it is unlikely this reform will come about, the once fringe topic’s place in the Democratic primary election conversation is of note.[iii] The idea of court-packing is a sign of polarization, which is often associated with democratic erosion. As discussed by Ziblatt and Levitsky in “How Democracies Die” actions such as court-packing constitute constitutional hardball. Constitutional hardball is the utilization of all possible constitutional powers, including loopholes and exploitation of laws, to further partisan gain. These actions imply a lack of respect for political opponents and their legitimacy, and lead to an increase in polarization by encouraging opponents to engage in similar actions. As these actions become more incorporated into politics, democratic norms of respecting the legitimacy of political opponents and institutions which check the power of specific individuals or parties, begin to erode. Ziblatt and Levitsky imply that this poses a serious threat to democratic institutions and the integrity of democracy itself.

Polarization and a lack of political forbearance is not new, and neither is manipulation of the Court. However, its inclusion in the debate surrounding the presidential election is something to be aware of. Lack of party-restrain and the effects of polarization on American politics are discussed in McCoy’s “Polarization and the Global Crisis of Democracy: Common Patterns, Dynamics, and Pernicious Consequences for Democratic Polities.” Actions such as court-packing and active disrespect for the legitimacy of the opponent are the main propellants for polarization in the United States. McCoy points to gridlock as one of the main results of this polarization, however, McCoy suggests that democratic backsliding could arise from its normalization. As these actions become the norm, the public is developing an apparent “tolerance of illiberal behavior” (McCoy, 31). McCoy is referring primarily to the Trump administration’s lack of respect for the legitimacy of the opposition, the principle can very easily be transfer to Buttigieg’s endorsement of court-packing. Buttigieg may be genuine in his proposal to pursue a less political Supreme Court, but in promoting the use of court-packing in his presidential campaign, Buttigieg is bringing constitutional-hardball and the acceptance of anti-democratic values into the discussion. If these values become the norm, it could escalate such actions by the opposing party, encourage polarization and pose a serious threat to American democratic institutions, regardless of the original intent.

[i] https://theintercept.com/2019/03/21/mayor-pete-buttigieg-on-trump-islamophobia-and-his-presidential-bid/

[ii] https://www.bloomberg.com/opinion/articles/2019-04-05/pete-buttigieg-s-plan-to-politicize-the-supreme-court

[iii] https://www.nytimes.com/2019/03/12/us/politics/reparations-court-packing-filibuster-2020-democrats.html