Should We Pack the Court?

American Democracy

Democracy Examined

On Friday, April 9th, the Biden Administration announced that it would establish a 36-member, bipartisan commission to study reforming the Supreme Court, including the politically contentious issues of “court packing,” instituting term limits for justices, and more. The Commission will research and hold public hearings on these issues before issuing a report on them in six months.

The group of scholars on the Commission is arguably well-balanced, representing those on both sides of the aisle within the legal establishment. It will be headed by former Obama justice officials Bob Bauer and Cristina Rodriguez and include prominent legal scholars across the political spectrum, from former RDI Board member Laurence Tribe to Harvard Law professor Jack Goldsmith. The picks have won praise from many moderates and even members of the textualist Federalist Society, though they’ve also received criticism from some partisans: the Wall Street Journal’s editorial board panned the roster for “tilt[ing] markedly… left,” while some progressives are disappointed that leading Court expansion advocates were not included.

Many commentators contend that the Commission’s “milquetoast” membership means Biden is not interested in “packing the Court.” Rather, they speculate the Commission is an attempt to mollify the many Democrats still angry over what they believe to be a stolen Supreme Court seat. They contend that Senate Republicans exhibited a double standard in refusing to give Obama nominee Merrick Garland a hearing while confirming Justice Barrett, despite the fact she was nominated five weeks before the 2020 election. Many progressives are also anxious about the Court’s ostensible 6-3 conservative majority, which many on the left consider a danger to their values.

Should we pack the Court?

No. It was a bad idea when FDR proposed doing so in 1937, and it still is for two main reasons.

First, it would erode the public’s trust in the legitimacy of the Court. This public trust is pivotal in ensuring that the American people respect the decisions of nine unelected judges who review cases of profound public importance. As Justice Breyer explained in a speech to Harvard Law School last week, the Court’s authority depends on “a trust that the Court is guided by legal principle, not politics.” However, as the late Justice Ginsburg commented in a 2019 interview, “if anything would make the Court appear partisan, it would be” packing it for political advantage. 

Expansion advocates and “legal realists” may respond that the Court is already partisan—they point to Bush v. Gore, or Citizens United v. FEC, or the controversial confirmation of Justice Kavanaugh and the Garland-Barrett debacle. However, this discourse is not representative of the broader conversation. Among the American public, the Supreme Court remains fairlypopular (far more so than Congress). Only one-third of Americans support expanding the court. Even FDR with his decisive mandate could not convince the public to support court expansion; it’s doubtful President Biden will.

Second, as we warned last month about abolishing the filibuster, “rolling back institutional guardrails should not be taken lightly. Thinly-veiled partisan power plays risk precipitating a dangerous cycle of tit-for-tat destruction of constraints,” one that would be especially detrimental for the judicial system. Such a move could yield short-term benefits for Democrats, but ultimately could corrupt the institution whose very purpose is to serve as a check on the political branches. This doesn’t mean that the judicial system should never be reformed, but rather, it means that institutional reforms should avoid even the appearance of being pursued for political advantage. 

What should we do?

The popular proposal to appoint justices to uniform, 18-year terms, rather than giving them life tenure seems far more reasonable. While this might (ostensibly) require a constitutional amendment and expanding the Court would not (life tenure is enshrined in the Constitution, a nine-justice Court is not), it is nonetheless promising for several reasons. (Notably, some proposalsrecommend rotating justices who have served their 18-year term onto lower appellate courts, which could circumvent the requirement of a constitutional amendment.) 

First, it’s fair. The terms could be staggered so that each President nominates a new justice every two years (e.g. on odd-numbered years), and thus a roughly equal number are appointed per term. Such consistency is an improvement over the bizarre status quo in which a President’s influence depends on how many justices happen to die or resign during their administration. The reform enjoysbroad bipartisan support, indicating the public likely agrees: 66 percent of Democrats, 74 percent of Republicans, and 80 percent of Tea Party conservatives support 10-year term limits (support for 18-year terms is likely similar).

Second, if nominations were to occur at predictable intervals, this new system could reduce partisan bickering and stonewalling. Even if the minority party were faced with a particularly ideological nominee, their base would know that they will have a chance to appoint more justices soon enough, taking some of the urgency out of each individual appointment.

To be sure, there are outstanding issues: even with term limits, the Senate-majority party could still block a President’s allotted appointments (although such tactics would be less politically palatable than they are now). Nonetheless, as Berkeley Professor Orin Kerr articulates, it’s still worth a try: “If the Supreme Court is going to have an ideological direction—which, for better or worse, history suggests it will—it is better to have that direction hinge on a more democratically accountable basis than the health of one or two octogenarians.”

Researching and debating these issues is not a bad proposition. Politically pressuring an apolitical branch is. Judicial reform can be forged through consensus, or imposed through partisan strong-arming: the importance of the choice between the two to the health of our democracy cannot be overstated.