NEW YORK — Following the confirmation of President Donald Trump’s Supreme Court pick Brett Kavanaugh, some Democrats and progressive activists are shifting tactics, pushing a scheme to “pack” or “balance” the Supreme Court by adding two new seats to be filled by liberal judges. The Supreme Court expansion plot would be enacted if Democrats retake Congress and the presidency in 2020, according to the plan.
On Saturday, Vice’s West Coast editor Harry Cheadle referenced the plot in a piece titled, “We’re Watching the Slow Poisoning of the Supreme Court.”
Chatter of impeaching Kavanaugh was floating around, and some have taken to imagining a scenario where the Democrats retake Congress and the White House in 2020 but have their progressive legislation blocked by the Supreme Court. The only way forward then, the argument goes, would be appointing extra justices to “pack” the court—a scheme proposed by Franklin Roosevelt in response to a similarly right-wing Supreme Court in the 30s (FDR’s plan was rejected by Congress, but the court became friendlier to his policies anyway).
On Sunday, Vox.com featured an interview with political scientist David Faris, who advocated in a recently published book for Democrats to pack the Supreme Court with as many liberal judges as they can. Farris branded the plan the “neutron option for the Supreme Court.”
Cheadle himself previously summarized Faris’s arguments thusly:
[It] would involve first proposing a constitutional amendment to end lifetime tenure on the court and pushing a proposal to let each president pick two justices per term, a compromise that Faris hopes would “end the court wars.” He suspects Republicans wouldn’t go for that, however, so he’d advise the next Democratic president to just “pack” the court as FDR tried to do in 1937 before Congress rose up against him and prevented it. That would involve passing a bill to expand the size of the court and allowing the president to appoint however many justices would be needed to create a new liberal majority, with the friendly Senate signing off on any appointee. (This would be legal, Faris points out, because there’s nothing in the Constitution stipulating the size of the court, which has in fact fluctuated in the past.)
Indiana Law professor and podcaster Ian Samuel, meanwhile, advocated for such a plan to become a new progressive catch phrase, tweeting, “‘Pack the courts’ should be a phrase on par with ‘abolish ICE.’”
Huffington Post senior reporter Zach Carter followed with a piece titled, “Hey, Democrats: Pack The Court.” “‘Eleven Justices’ is the next ‘Abolish ICE,’” was the subtitled of the article.
Writing at NBC.com on Sunday, political science professor Scott Lemieux opined that “Democrats are now much more likely to mobilize against an even more conservative court.”
But how might Democratic leaders respond?
A more likely scenario — especially if a Trumpified Supreme Court not only effectively overrules Roe v. Wade but then keeps striking down legislation passed by the next unified Democratic government — is expanding the size of the Supreme Court. The constitution does not fix the size of any federal appellate court, and the number of justices can be changed with simple majorities of both houses of Congress. Doing so isn’t hypothetical: After the Civil War, congressional Republicans manipulated the size of the court to ensure that it wouldn’t interfere with Reconstruction.
On Thursday, Bustle.com’s Caroline Burke asked, “Why Are There 9 Supreme Court Justices?”
Burke noted that “packing the court” might “sound kind of revolutionary, mostly because of the stigma around the Supreme Court as an institution that is above partisan politics, not to mention the notion of justices having life terms on the bench.”
But the number of Supreme Court justices isn’t a foundational American tenet, like termed presidencies. It’s just a law — and more and more, intellectuals and thought leaders are raising the idea of packing the courts as the only solution to ensuring the continuation of progressive legislation in coming years.
Last month, activist attorney Michael Avenatti advocated for the 2020 Democratic presidential candidate to add two seats to the bench and expand the Supreme Court to eleven seats, ostensibly by picking additional liberal judges.
“The Dem nominee must commit to this or not receive the nomination IMO,” Avenatti tweeted about his proposal. “There is far too much at stake.”
Also last month, British journalist Mehdi Hassan wrote in the Intercept that following the nomination of Kavanaugh it is now “past time for liberals and the left to consider court packing: When they next have control of the House, the Senate, and the White House, Democrats should add at least two new seats to the Supreme Court and then fill them, ideally, with left-wing, well-qualified women of color. They could even call it ‘court balancing.’”
The far-left Daily Kos blog issued a “warning for Republicans” that if Kavanaugh is confirmed, a “future government controlled by Democrats” is “likely to pursue that option” – referring to “court packing.”
In July, Yale Law School professors Ian Ayres and John Fabian Witt laid out the case in the Washington Post for expanding the Supreme Court, referring to the tactic as “court balancing.”
“Democrats need a Plan B for the Supreme Court. Here’s one option,” their oped was titled.
The duo advocated for Senate Minority Leader Charles E. Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) to announce a plan aimed at “balancing” the Supreme Court if the Democrats can win a majority in Congress and take the presidency in the 2020 election.
Ayres and Witt note the Constitution does not stipulate the Supreme Court must have nine seats and they reference historical precedent for expanding the nation’s highest court:
The court originally had six seats. It expanded and contracted in the first half of the 19th century, then settled on nine. It has remained there since 1869, partly as a political norm and partly to preserve competitive equilibrium.
At crucial moments in U.S. politics, parties have acted to change the size of the Supreme Court. Often the tactic was a political power play. But sometimes it was undertaken for the good of the country, as during the Civil War, when the Republican Congress in 1863 added a seat to the court in part to protect the success of the war effort against formidable legal challenges.
The Democrats’ court-balancing proposal for 2020 should commit the party to expanding the size of the Supreme Court by appointing two new federal judges who, by statute, would be designated to sit on the court for 18 years; thereafter, the constitutionally required life tenure would be served in lower federal courts.
While pushing their proposal under the banner of “balancing,” the Yale professors do not disguise their goal of packing the court with two new liberal judges:
If Democrats took control of Congress and the presidency in 2020, the new administration would effectively have two Supreme Court slots to fill immediately. The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself.
Ayers and Witt were referring to the nomination of Merrick Garland, who was the pick of Barack Obama, then a lame duck president, to fill the slot left vacant following the death of Justice Antonin Scalia.
LA Times journalist and blogger Michael Hiltzik pushed a similar plan in a piece titled, “How a new court-packing scheme could save the Supreme Court from right-wing domination.”
The Economist last month also referenced the possibility of Democrats “packing” the Supreme Court:
The judgments of a court seen as just another nakedly political body, no different from Congress or the presidency, can easily be dismissed—or fought. Franklin Roosevelt mulled packing the court in the 1930s when it frustrated his New Deal ambitions. It is not hard to imagine a Democratic president and Congress doing the same in four years’ time, if five Republican-appointed justices repeatedly strike down the ambitious social programmes these politicians promised.