“Court-Packing” and Saving American Democracy

On December 21, 2018, news organizations ran abuzz with a bomb report — Ruth Bader Ginsburg had been re-diagnosed with cancer. The BBC published this headline: Ruth Bader Ginsburg: Liberal America panics when she falls ill. But why is this the case? Why should the decisions of the Supreme Court, and thus the rights of hundreds of millions, rest so heavily on one woman’s health diagnosis?

Given the lifetime-appointment nature of the Supreme Court, and the low number of Justices (nine), the influence that Presidents hold with each appointment is substantial. Coupled with the rise of American partisanship since the 1980s, it is no surprise that nominees are being treated with less unanimity than before. How else to explain the climactic nature of Supreme Court hearings since 2016, with ‘winners’ proudly boasting and ‘losers’ bitterly crushed? This development is especially concerning given the Court’s critical role in maintaining the checks and balances of American democracy.

Yet the stability and continuity of the Court should not depend on such a small number of jurists. As Ginsburg and Huq explain in “How to Save a Constitutional Democracy,” courts aligned with a partisan regime are useless checks on authoritarianism — an all-too-possible threat here when only two or three appointees can shift the balance of the Court. The President and Congress in office in 2021 should seriously consider expansion of the Court as a solution to this weakness.

However, “expansion” must be understood carefully. For example, progressive activists have proposed court-packing to ‘restore’ an ideological balance to the Court. But this solution is simplistic and would do far more harm than good, as Franklin Roosevelt learned in 1937, and other nations have learned since. The President and Congress in 2021 cannot afford to let judicial reforms be interpreted as ideologically-driven. Instead, a neutral and perhaps bolder solution is to expand the Court by a great amount.

I propose that the Court be expanded either by 12 or 94 seats. These seats represent the number of existing federal circuit courts (minus one, to add an even number of seats), and of district / territorial courts, respectively. One Justice would be appointed from each court, selected as the nominee by the other judges on their courts. These nominees name a list of several jurists from which to fill their now-vacated federal seat, and so on. The President and Senate agree in advance to nominate and confirm all Justices, regardless of their ideological leanings. Consequently, the new Supreme Court would be 21 or 103 seats large.

Some concerns about this proposal ought to be addressed. First, there is international and domestic precedent for such court sizes, which lessen the impact any one Justice’s arrival or departure may have on rulings. Second, the Court has a history of changing size. Third, this plan does not address other vulnerabilities of the Supreme Court, including its lifelong membership (which encourages the selection of younger, less experienced nominees); the inherently partisan nature of judicial appointments (by a President and Senate of political partisans); and the Court’s miniscule caseload (the vast majority of appeals to the Court are rejected). Only constitutional amendments or significant laws could change such characteristics. Lastly, this reform does not, and cannot, insulate the Supreme Court from other dangers of democratic erosion, such as executives ignoring the Court’s rulings, partisan tit-for-tat changes to the Court, or attempts to undermine public confidence in the judiciary. These threats must instead be addressed by upholding democratic norms.

This reform is far from perfect, and is meant to illustrate the political neutrality and nuance that reforms to the Supreme Court would necessitate, rather than present a definitive solution. And of course, reforms to Court size would be far more successful if the aforementioned vulnerabilities of the Court are tackled as well.

The President and Congress who hope to reform the Court must emphasize that their goal is to neutralize judicial partisanship, not aggravate it. By allowing judges to name the new Court members, instead of politicians, a message of faith in the judiciary’s wisdom will be conveyed. Obviously, this politically neutral attitude to court-expansion may have unexpected consequences for how the Court rules. Indeed, the President and Congress might be ideologically incentivized to maintain the status quo instead. But one side must have the political courage to end, or at least slow the ideological arms race which has so far seriously compromised Americans’ respect for the Court and the judiciary in general. Our democracy’s dire crisis must be met with bold reform — and bold it will be.