How (Not) To Reform the Supreme Court, Part Two: The Case For Court-Packing
After a hiatus of slightly more than two months, here, finally, is the second part of my series on How (Not) to Reform the Supreme Court! This time, I'm covering what I consider to be the single most important piece of any court reform effort: court-packing, these days often politely referred to as "court expansion," i.e. adding new Justices to the Supreme Court. President Biden's plan for court reform that sparked this entire series back in late July did not include any kind of court expansion. Ron Wyden's recent proposal, which I discussed in Part 1(b) of this series last week, did; Wyden wants to increase the size of the Court to fifteen Justices, with seats being added gradually over time.
Wyden's proposal is in line with what, in my experience, are the bulk of the popular justifications for expanding the court. These tend to be on the neutral-technocratic side: we need more Justices to keep up with the increased size of the country, say. It's understandable that people flock to these kinds of arguments, since the last time someone tried to increase the size of the Supreme Court was a nakedly partisan attack on judicial independence, and was a disaster.
However, I think this is entirely the wrong approach; indeed I kind of regret the move to the bloodless phrase "court expansion." In the particular circumstances of 2024, the point of adding new Justices to the Supreme Court is to alter the partisan/ideological composition of the Court. This is justified, first and foremost, as a response to the shenanigans that Republicans pulled in the period from 2016 to 2020 to warp the composition of the Court in their own favor. Indeed, responding to these shenanigans is the central impetus for doing any kind of court reform right now, and without something like court-packing, any reform effort will be incomplete. The purpose of this piece is to explain the reasoning behind these conclusions. I sketched out much of these arguments in my piece for Liberal Currents over the summer, but I can go into more depth here.
As a reminder, you can find Part One of this series here, and I linked to Part 1(b) above.
First of all, why are the technocratic explanations for court expansion wrong? The most common one of these is that the court should get bigger to match the size of the country, perhaps in line with the increase in the number of "circuits" from 1869, when the size of the Court was set at nine, to today. (These are the geographic regions each of which is served by a federal court of appeals.) There are today thirteen circuits, eleven of which are numbered, plus the D.C. Circuit and the Federal Circuit, so this logic would lead to adding four new Justices.
But none of this makes sense. First of all, note that while the number of circuits has increased by just under 50% in that century and a half, the population of the United States has increased literally tenfold. The volume of litigation has probably increased even more than that. This, I think, is a clue that something's off in this telling of the story: if we're trying to keep up with the expansion of the country, why are we pegging it to the number of circuits?
And it only gets worse on further examination. The reason why the size of the Court was tied to the number of circuits in the first place was the practice of riding circuit: Justices would literally travel around an assigned circuit for part of each year, hearing cases on the lower courts. This had been a thing in the English judiciary, but America, you may note, is quite a bit larger than England, and the Justices absolutely hated having to do this from the very beginning of the Republic. The 1801 Judiciary Act, mostly remembered as part of a Federalist power grab that led to Marbury v. Madison, abolished the practice, but Jefferson and his allies immediately restored it, basically as a way to make the Federalist-stocked judiciary suffer.
The practice was ultimately abolished in 1911. Amusingly, it would actually be semi-feasible to institute something like this today, given the advances in travel technology. But... I haven't heard anyone propose that, and I'm pretty sure you'd be laughed out of the room if you tried to. And in the absence of circuit-riding, there's no particular reason for the number of Justices to be linked to the number of circuits. There is a practice today where each Justice is responsible for initial consideration of emergency motions that come out of a particular circuit, and a couple of them are responsible for two circuits. But that's not, like, a big problem or anything.
More generally, the idea of expansion as a response to the increased demands on the Court just misperceives how the Supreme Court functions. In the lower courts, adding more judges helps you deal with rising case loads; I'll have something to say about this in Part Three of this series, because we should totally add more lower federal judges. Like a lot more. But that's because you can divide the cases among the various judges; increasing the denominator makes the burden easier to bear. On the Supreme Court, though, every judge sits on every case. This means that the total amount of work generated by each case scales with the number of Justices. Making the Court bigger doesn't reduce the burden on each individual Justice, because they each still have to sit on every case.
Now, there are a few ways in which this isn't 100% true. Not every Justice actually writes an opinion in each case, although they all can if they want. And the way certiorari is handled these days actually does kind of divide the work up. But it's all pretty marginal. Broadly speaking a Court that always sits en banc is a court where workload per judge does not depend on the number of judges.
To be clear, there are real issues about the Court's workload. They're currently hearing fewer cases than ever, while receiving more cert petitions than ever. The whole thing is just a mess. And there are other technical issues with how the Court functions that I think are absolutely ripe for reforming. That's what Part Three of the series will be about. But this is just isn't the problem for which adding new Justices is the solution. In fact I think it's fairly clear that these technical arguments for expansion are trying to backfill a neutral justification for what's actually a partisan power grab.
This is a mistake. The partisan power grab is the point. That's actually what's needed to fix what's plaguing the Court as an institution, that's what impartial justice requires in this moment.
The basic idea here is that the Court has already been subjected to a partisan power grab. But it goes beyond that, I think. What the Court has already been subjected to is the influence of the principle that Democrats may never legitimately hold or wield power, even when they win elections. This principle is quite obviously anathema to a free republic. That the Court's composition has been shaped by this essentially-fascist principle is, in my view, the main reason why the Court's legitimacy and public trust has rotted away. The only way to fix things is a robust assertion that, to the contrary, Democrats are entitled to exercise political power. In other words, a partisan power grab.
The story of how this principle came to shape our Supreme Court obviously begins with the death of Antonin Scalia in February 2016. The Court had been balanced on a knife's edge for decades, with five conservative Justices (counting moderate conservatives like Anthony Kennedy and Sandra Day O'Connor) against four liberals. But Scalia, the giant among the conservatives, died during the term of a Democratic president: if Obama could replace him with a liberal, control of the Court would flip for the first time in something like two generations. Unfortunately the Republicans controlled the Senate. Obama, thus, nominated D.C. Circuit Judge Merrick Garland, a moderate liberal whom many Senate Republicans had previously praised.
And Republicans responded with a total blockade. They did not vote Garland's nomination down, they did not even especially advance a critique of Garland himself. Rather the claim was that Obama did not really have the right to fill Scalia's seat at all. Republican Leader Mitch McConnell was the architect of this strategy: he claimed that historical practice showed that a president could not make a Supreme Court appointment in a presidential election year. (He even tried to attribute this practice to then-Vice President Joe Biden, in his capacity as chair of the Senate Judiciary Committee in like 1988.) Historical analysis, of course, showed that this claim was utterly spurious. Nevertheless, the Senate never took any action on Garland's nomination, not even a committee hearing, and the seat remained vacant until Trump took office in 2017, at which point he appointed conservative Neil Gorsuch.
Fast forward four years to when liberal icon Ruth Bader Ginsburg died in September 2020. This was a lot closer to the 2020 presidential election than Scalia's death had been to the 2016 election. In fact, Ginsburg's death occurred at a time when it really would have been historically aberrant to confirm a new Justice before the election. But that's exactly what Trump and McConnell did, rushing Amy Coney Barrett's nomination through the Senate in just a few weeks. Asked to explain his about-turn from 2016, McConnell said that he only meant that a president shouldn't make an appointment in an election year if the Senate was controlled by the other party.
All of this is nonsense. The idea that it was improper for Obama to nominate Scalia's replacement is flat-out wrong. In fact, as some of my undergraduate students at the time pointed out in our class discussions, Obama was plausibly understood to be under an affirmative constitutional obligation to make such a nomination! Article II, Section 2, Clause 2 says that the president
shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States...
The key here is the difference in wording between the two bolded phrases. The president "shall have Power" to make treaties, but he "shall appoint" judges and other federal officials. The former suggests discretion – the president needn't make treaties if he doesn't want to – while the latter does not. (I am not kidding when I say I hadn't thought of this argument myself before my students suggested it to me, but I really like it.)
Of course, the Senate is not obliged to grant its consent to any particular nomination. Discussions of l'Affair Garland often circle back to this point: the Republican Senate had an absolute right to reject Garland, so why does it matter how exactly they did it? Indeed I think it's pretty clear (as my students in 2016 largely agreed) that the Senate is under no particular obligations when the president sends along a nomination; there's no affirmative obligations to hold hearings or an up-or-down floor vote. There's no coherent claim that McConnell's Senate exceeded the bounds of its legal authority.
But, you know, court-packing is technically legal, too. The reason it's become a taboo isn't that it's unconstitutional, it's that it breaks with the cluster of sub-constitutional norms that protect and realize the constitutional policy of judicial independence. And what McConnell did, I think, was similarly norm-breaking, similarly counter to constitutional policy. In this case the policy is that... the American people choose their leaders? Scalia died in February 2016; it was the duty of the person who was president at that time to select his replacement, working together with the Senate that existed at the time. In 2012, the People chose Barack Obama to be that guy. They elected him to a term that included what became the day Scalia died. They also elected, in the 2010, 2012, and 2014 elections, one hundred Senators who would be in office on that day. They chose those 101 people to replace Scalia. McConnell overruled that choice, and he overruled it because he did not like the choice the People had made.
This is why it matters how exactly they rejected Garland's nomination. If they had held hearings and voted Garland down because they thought he was too liberal or whatever, they would have been acknowledging Obama's right, conferred upon him by the American people, to make the nomination in the first place. In rejecting Garland, they would only have been exercising their right to consult on the choice of Supreme Court Justice. Obama, then, would have been honor-bound to make another nomination, taking the Senate's perspective – as expressed in their rejecting Garland – into account.
That doesn't mean he would have had to nominate someone McConnell would have loved: the Senate's right to participate in the choice of Justice does not, of course, preclude the president's. Perhaps the two sides would have remained deadlocked through the election, unable to come up with a candidate both could accept. In that case I think we would say that there had been a breakdown of the constitutionally-prescribed process, which asks each side to work together in good faith. Which side was more to blame would be a subjective question (hint: it would be the Republicans), and ultimately it would be up to the People to step in where their representatives had failed.
But in rejecting him out of hand for the reason proffered, Senate Republicans weren't really giving "advice" to Barack Obama at all. The only problem they identified with his nominee was... that he was the one making it. Of course there was no way for Obama to act upon such "advice," except I suppose by resigning? And having Vice President Biden also resign, such that Speaker of the House Paul Ryan became president instead? All of which is just to say that the Senate's action in l'Affair Garland was to nullify a portion of the authority the American people had vested in Barack Obama four years prior. Where we had chosen him to be the person filling a vacancy that arose in February 2016, Senate Republicans decided that he should not be that person.
The events of October 2020 make crystal clear, moreover, that the reason they thought he should not be that person is solely and exclusively that they didn't like the choice the American people had made in 2012. Recall that what McConnell said in 2020 was that the supposed "principle" that a president should not fill a Supreme Court seat in an election year only applied where the opposition party controlled the Senate. But this is nonsense! Constitutionally speaking, "parties" do not exist. The first congressional parties were simply clusters of congress-critters who tended, respectively, to support or oppose the policies of the Washington Administration (that is, of Alexander Hamilton). Formally speaking that's still all they are!
This actually gets into a broader topic, which is the trend over the last two centuries for partisan identities to utterly supersede institutional ones. McConnell's reading of the Constitution is essentially: a political party may appoint Supreme Court Justices if and only if it controls both the White House and the Senate. The actors on this view are the parties; the branches of government are tools they deploy to achieve their ends. This is plainly not what the Constitution has in mind! Of course there will be bonds of partisan loyalty between the president and some portion of the Congress. But Congress's role in, say, the confirmation process is an institutional one. Members of Congress are bound by oath to participate in that process as members of their institution. Each of the one hundred Senators is equally obliged to give advice, and to give or withhold their consent, to the president, whether they are a member of his party or not.
McConnell and his caucus refused to perform that function in 2016, for no other reason than that they did not like who the People chose as their institutional counterpart. That wasn't technically illegal, but it was an outrage against the basic premises of American democracy, and it demands a response. As McConnell denied the right of Democrats to exercise political power – a proposition that is not without serious racial overtones, by the way – we must assert that they do have that right. We do this by having Democrats put a bunch of new Justices on the Supreme Court, even though no vacancy exists. Note that on this account of what court-packing is, it's not so much a response to the Court itself as to the Republican Senate of 2016-2020. The specific purpose is not so much to change how the Court decides cases – although of course that's hardly an unintended side-effect. It's more like a conversion suit: you took my stuff, now give it back. This is a big part of what differentiates it, for me, from what FDR tried in 1937.
This, for me, is the heart of the case for expanding the Supreme Court. It's also an argument I haven't heard very many other people make, so I want to give it pride of place here. But it's certainly not the only relevant consideration. We are currently in a period where, for the first time in American history, a majority of the Supreme Court was confirmed with the votes of Senators representing fewer people than the Senators opposing confirmation. (That's Thomas – the first Justice to achieve this distinction – Alito, Gorsuch, Kavanaugh, and Barrett.) Five Justices were appointed by presidents who only achieved their office in the first place through the minority-rule Electoral College (swap John Roberts in for Clarence Thomas, here). Even if you don't want to count George Bush's appointments in 2005 for this purpose, since Bush won the popular vote in 2004, you've still got three Justices chosen by both a minority-rule president and a minority-rule Senate.
Even if you find my account of l'Affair Garland unconvincing as a causus belli for court-packing, then, I think it is amply justified as a re-assertion of the fundamental principle of majority rule. The Court is independent of immediate partisan politics for good reason, and yet its business is fundamentally the People's business, and it must be performed by individuals chosen by the People. You could imagine a system where there was no connection between the People and their judges: perhaps a self-perpetuating judiciary, with new judges and Justices chosen by the existing members of the Court. We would not, I think, accept such a scheme as consistent with republican government, certainly not if the courts had anything like the power of judicial review. Selection of judges by popular minorities is not really any better than that. But that's what has happened! Utterly consistent with the Constitution, of course, which is itself the instrument of this minority rule. But We, the People are not bound for all time to accept that. The same Constitution gives us a means of redressing the minority-rule Court; we should use it.
Finally we have the conduct of the Justices themselves. I have considerable trepidation about using this as a justification for court-packing, which is why I have only come to it at the very end of the piece. And yet, extreme times call for extreme measures. We are not dealing with a court that, as in Roosevelt's time, took an overly restrictive views of the powers of Congress and thereby frustrated popular programs. No, we are dealing with a Court that has upended our entire scheme of republican government and opened the door to tyranny.
We are dealing, moreover, with a Court that thumbs its nose at the very idea that it should conduct itself in an ethical and upright fashion. Traditionally the expectations for judicial ethics were rather stringent! In the nineteenth century they would impeach judges for drunkenness on the bench. Oh also, two members of the Court likely perjured themselves about their own sexual misconduct to secure confirmation. Ideally all of this stuff would be handled through impeachment, but, well, impeachment is broken, and we're not obliged to just twiddle our thumbs in its absence.
What every single one of these considerations points toward, ultimately, is the same conclusion: we are not bound to accept that these people get to rule over us in perpetuity. This is one reason why I am somewhat less critical of Justice Ginsburg for her failure to strategically retire in 2014 than many. Yes, that opened the door for Justice Barrett to replace her, and thus to the destruction of Roe v. Wade. But Ginsburg only "doomed" us to generations of right-wing judicial rule if we choose to accept that fate. We don't have to do that! We have a perfectly lawful tool at our disposal to change our national destiny. We should use it.
The question, then, is exactly how we should use it: how many new Justices? Appointed when? Should this increase be permanent, or what? On the first question, I think that either four or six new Justices feels right. Four is the minimum required to wrest control of the Court away from the conservatives. It makes sense to add two Justices for every one Justice improperly appointed by the Republicans. How many is that? My main argument in this piece clearly identifies Gorsuch as one. I think Barrett can be counted as a second, by the same token. Now you might say that Democrats need to pick one, that if Gorsuch was improperly appointed then there was nothing wrong with Barrett's appointment process. But Ginsburg's death was literally during election season. I don't think it's particularly hypocritical to say that at that point, though not in February 2016, they should have waited to let the new president make the appointment. I'm not terribly wedded to this position, though.
And regardless, the minority-rule thing points toward counting at least all three Trump Justices as ill-gotten. (Oh yeah, did I forget to mention the whole "Trump was a crook who did crimes to become president in the first place" problem? Can't leave that one out!) That gets you to six, which is the same number that Senator Wyden suggests in his new bill. But he would add those seats gradually over time, which is exactly wrong. The whole point of the exercise is for Democrats to assert power over the courts! The new appointments should all happen simultaneously, with a Democratic president and a Democratic Senate. It'll be the biggest burst of Supreme Court appointments since George Washington's first slate in 1789!
Relatedly, I think it's actually kind of important to signal that the proper size of the Supreme Court is nine. There are a few reasons for this. First, as I outlined above, the neutral-technical arguments for why we need a bigger Court are basically wrong. But more than that, the more you frame the thing in those terms, the less you are emphasizing the part about how Democrats are part of the sovereign People, too. Also, nine is the number that's embedded in American political culture. Embracing nine as the Court's telos, then, helps to signal that we are not trying to demolish the Court, that this is an emergency reparative measure.
I would say, therefore, that the bill expanding the Court should also provide that it will shrink back down to nine via attrition. And I would propose at the same time a constitutional amendment significantly reworking Article III. If we want to see the Court rebuilt rather than bulldozed, it's important to avoid the "tit-for-tat" situation where each time a new party takes power, they add new Justices until their side controls the Court. The court-packing I have in mind would represent a significant escalation in the Judiciary Wars. I think that escalation is called for, but I also think those wars need to be brought to a close. That can't ever happen if our side doesn't show a willingness to fight, but there does eventually need to be a peace treaty. That's where the amendment comes in.
In Part Three, I'll discuss what that amendment might look like. I will also tackle a handful of technical issues that I think are ripe for addressing through a new Judiciary Act that's separate from the more overtly political aspects of "court reform."