Court-packing, Democrats’ nuclear option for the Supreme Court, explained

Why an FDR plan from the 1930s is suddenly popular again.

Almost as soon as Anthony Kennedy announced his retirement from the Supreme Court, putting the legality of abortion and the safety of protections for LGBT people in immediate jeopardy, calls started pouring in from liberals and leftists for a drastic response: court-packing.

There is nothing in the Constitution mandating that the Supreme Court have nine members, and a simple act of Congress could increase that number to 11, or 15, or even more. That effectively creates a way for a political party in control of the House, Senate, and presidency to add a large number of ideologically sympathetic justices to the Court, all at once.

To many leftists and left-liberals, such drastic action is needed if any progressive legislation in the future is to survive. The concerns in question have less to do with hot-button social issues like abortion and LGBT rights and more to do with the constitutionality of economic regulation and redistributive programs. Just this past Wednesday, the Supreme Court effectively gutted public sector unions under the guise of the First Amendment. In 2012, there were four votes on the Supreme Court (including Anthony Kennedy) for striking down the Affordable Care Act in full. And there’s an emerging movement of judicial conservatives, championed prominently by Donald Trump’s appellate appointee Don Willett, which wants the courts to become much more aggressive in blocking economic regulation.

If that kind of judicial conservatism comes to dominate the Supreme Court, then even winning back the White House and Congress won’t be enough for programs like a $15 minimum wage, or Medicare-for-all, or a free college plan, to be passed and secured. The Supreme Court would stand ready to rule them unconstitutional nearly as soon as they are passed. In such a scenario, court-packing starts to look like a reasonable defensive measure.

The prospect of a Court slapping down progressive economic measures brings to mind the last time court-packing was seriously considered. In 1937, Franklin Roosevelt was facing off with a hostile Supreme Court that routinely ruled aspects of the New Deal unconstitutional on the same grounds. During that era, the Court interpreted the due process clauses of the Fifth and 14th Amendments as sharply limiting economic regulation and ruling out things like federal bans on child labor, minimum wage laws, and legislation limiting work weeks to 60 (!) hours.

Roosevelt’s plan to increase the court’s size — which would’ve allow him as many as six new justices, for a 9-6 majority for the New Deal on a 15-member court — ultimately failed in the Senate, but not before successfully pressuring Justice Owen Roberts to switch his alignment from the Court’s conservatives to the liberals and rule for the constitutionality of minimum wage laws and the National Labor Relations Act.

If calls for court-packing grow loud enough, you could see something similar happen on the current court, if John Roberts, soon to be the median justice, starts to view a major part of his job as avoiding the radical disruption of the Court by Democrats who fear being locked out of policy influence for a generation.

The case for court-packing

One of the most extensive arguments for court-packing comes from David Faris, a political scientist at Roosevelt University, whose book It’s Time To Fight Dirty argues for court-packing as part of a larger set of strategies to amplify Democrats’ political power, including statehood for DC and Puerto Rico, breaking California into multiple states, and expanding the House of Representatives.

The Republican Senate’s refusal to even consider Merrick Garland for Antonin Scalia’s seat, Faris writes, violated “a norm that presidents should get to nominate whoever they like, within reason.”

He continues: “Because of this unspoken agreement between the two parties, both sides regarded Supreme Court openings as what they are — lotteries to be won by lucky presidents, or lost by those unfortunate enough not to preside over an opening. The GOP’s treatment of Merrick Garland means that this informal agreement is trashed.”

That, to Faris, makes extraordinary measures like court-packing suddenly viable. And the threat of a conservative court undoing just about any legislative accomplishments of the next unified Democratic government makes it necessary: “A Court that strikes down a Medicare For All insurance system, or legislation establishing equal funding for public education, or that chips away at abortion rights, gay rights, and other issues that are now supported clearly by a majority of the public will create a profound crisis in American society of the likes that we haven’t seen since the Great Depression.”

To lower the stakes of confirmation battles, Faris favors eliminating lifetime tenure for judges and adopting the nonpartisan group Fix The Court’s plan of nonrenewable 18-year term limits. But unless nominees voluntarily pledge to step down after 18 years (which would effectively be a form of unilateral disarmament if only one party’s nominees take that pledge), term limits would require a constitutional amendment to enact. Court-packing, by contrast, only requires an act of Congress and could pressure Republicans to accept term limits as a compromise.

“If the reactionary right is unwilling to go along with this idea, as they almost certainly won’t be due to short-term political calculations, Democrats must use the power granted to them by the Constitution to pack the Supreme Court, protect the legislation demanded by a majority of Americans and, hopefully, to convince their opponents that the current structure of the court system cries out for a bipartisan solution,” Faris concludes.

In the aftermath of Kennedy’s retirement, a number of leftist/liberal writers echoed Faris’s arguments. @kept_simple, a pseudonymous lawyer with a popular Twitter account, argued in the Outline, “increasing the size of the Court is an entirely proportional response the GOP’s abuse of process. Gorsuch’s appointment alone justifies it. In shifting the Court from a potential 5 to 4 liberal majority to a 5 to 4 conservative majority, the Republicans effectively stole two votes. Increasing the Court’s size to 11 justices would merely rebalance what was taken.”

Todd Tucker, a political scientist and fellow at the Roosevelt Institute, argued more explicitly on the basis of policy outcomes in Jacobin. “With union density near an all-time low and climate catastrophe on the horizon, future lawmakers will need tools even more robust than what FDR was able to get through — think a Green [National Industrial Recovery Act] on steroids,” Tucker writes. “A handful of justices pulled from Federalist Society debating clubs can’t and shouldn’t get in the way of a more democratic and sustainable economy.”

The existence of historical precedents for court-packing beyond FDR further bolsters the argument for it. In a 1968 article for the Baylor Law Review, political scientist JR Saylor detailed “seven occasions Congress has enlarged or diminished the size of the Supreme Court by one or two judges.” Each of these seven times, the changes were made either to “purge the Court of … justices making decisions objectionable to an incumbent of the White House or to a dominant party majority in Congress” or to “‘pack’ the Court in order that the policies of the government in power would be upheld as constitutional.”

Those seven times were:

• In 1801, before the inauguration of Thomas Jefferson, the outgoing Federalist Party passed the Judiciary Act of 1801, shrinking the court from six to five members by providing that the next member to die or resign would not be replaced. Saylor describes this as “undoubtedly an attempt made by the Federalists to keep the Court wholly Federalist.”
• In 1802, Jefferson’s Democratic-Republican party repealed the 1801 law and returned the court to six members.
• In 1807, the Jeffersonian-dominated Congress expanded the Court to even members, to accommodate a new judicial circuit covering Kentucky, Tennessee, and Ohio, then new additions to the union.
• In 1837, two new circuits were created and the Court’s size increased to nine; Saylor credits this to the geographic pressures of America’s westward expansion, but notes that Andrew Jackson quickly took advantage and appointed two new justices the day before he left office.
• In 1863, Congress increased the Supreme Court’s size to 10 members in the midst of the Civil War. Saylor explains, “There was a widespread suspicion that Lincoln wanted another man on the Court on whom he could depend lest the body invalidate some of the crucial and doubtful wartime legislation which was coming before it at that time.”
• In 1866, as pro-Reconstruction Republicans in Congress did battle with President Andrew Johnson, Congress passed a law barring Johnson from filling vacancies until the Court shrank to eight members, which occurred the following year.
• In 1869, with pro-Reconstruction President Ulysses S. Grant in office, Congress increased the court’s size to nine, where it’s stayed ever since.

That history is not one of politically disinterested policymakers negotiating impartially as to the Court’s size. It’s a history of political manipulation with an eye toward partisan advantage, and some of the most heroic figures in American history — Lincoln, Radical Republicans in Congress like Thaddeus Stevens and Charles Sumner, Grant — engaged in the practice.

Arguments against court-packing

Court-packing was unpopular with the public when proposed by Roosevelt, and there’s a reason that many constitutional scholars and political scientists continue to decry it to this day.

In How Democracies Die, Harvard comparative politics scholars Steven Levitsky and Daniel Ziblatt characterize 1937 as one of America’s close calls with democratic backsliding, along with Richard Nixon’s attempts to evade justice at the end of his presidency. “Democratic institutions depend crucially on the willingness of governing parties to defend them — even against their own leaders,” Levitsky and Ziblatt write. “The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.”

In their 2017 paper “How to Lose a Constitutional Democracy,” UChicago law professors Aziz Huq and Tom Ginsburg concur, writing, “The presidential effort to pack the Supreme Court represents a low point for the rule of law in the United States, and is a technique that has been followed by modern-day illiberal democrats.”

It’s not hard to see why political scientists taking a more international view would see court-packing as, on its face, a threat to democratic institutions. As Huq and Ginsburg note, court-packing is a frequently used tool in the toolkit of would-be authoritarians.

To give a few examples:

• In 2004, Hugo Chavez’s loyalists in the National Assembly of Venezuela expanded the Supreme Court from 20 members to 32 and packed it with Chavez loyalists.
• In 1946-47, Argentina’s populist president and former military coup conspirator Juan Perón successfully impeached four out of the country’s five Supreme Court justices in a bid to consolidate power.
• In 1989, Argentine President Carlos Menem, fearing Supreme Court opposition to his privatization schemes, expanded the court from five to nine members and packed it with loyalists.
• In 2012, Juan Orlando Hernandez, then the president of Honduras’s National Congress and today the increasingly dictatorial country’s right-wing president, conspired to sack four of the five Supreme Court justices and replace them with his allies.
• As part of Viktor Orban’s rise to power as Hungary’s dictator, in 2010 he and his Fidesz party amended the rules of Supreme Court appointment so that the opposition no longer had to assent to nominees; in 2011 they expanded the number of judges from 11 to 15; in 2012 and 2013 they expanded terms on the bench from nine to 12 years and eliminated the 70-year age limit previously in place. These moves, together, resulted in 11 out of 15 judges being Fidesz loyalists.
• Poland’s authoritarian nationalist Law and Justice party in 2017 seized control over the Supreme Court by pushing legislation that gives the ruling party the ability to appoint new judges and the power to dismiss judges below a certain retirement age (which happens to disproportionately enable the dismissal of judges critical of the Law and Justice party). In the wake of massive public opposition, the president vetoed the legislation, only to accept a very similar bill months later. All this followed the party’s 2015 decision to not swear in judges appointed by their predecessors and to force a supermajority requirement on the court, effectively weakening it.
• Among many other attempts to weaken the judiciary, Turkey’s authoritarian President Recep Tayyip Erdoğan, then the prime minister, in 2010 pushed through a referendum increasing the Constitutional Court’s size from 11 to 17 and enabling him and his loyalists to fill the new vacancies.

The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple decades. It’s not a thing of the past, and is currently used by the authoritarian backsliders (Orban, the Law and Justice party, Erdoğan) that people who worry about Trump’s anti-democratic tendencies compare him to.

Supporters of court-packing could argue that just because the same method is used doesn’t mean that court-packing itself is anti-democratic. To give an analogy: When Italy abandoned proportional representation in 1923 by adopting the Acerbo Law, it did so to try to engineer landslide victories for Benito Mussolini’s fascists; but it doesn’t follow that any country that doesn’t use proportional representation (like the US or the UK or Canada) automatically is an autocracy. Court-packing is a tool: it can be used for authoritarian ends, or for democratic ones.

To which critics would reply: not so fast. Even a well-intentioned court-packing scheme (like FDR’s arguably was) can set off a cycle of mutual escalation that winds up discrediting and weakening the institution being battled over. The Supreme Court has no army. Its authority rests on the thin reed of public acceptance and political forbearance. If it were to be weaponized in a court-packing scheme, its rulings might suddenly stop being obeyed.

Let’s say that President Bernie Sanders packs the court in 2021, and the court subsequently overrules Milliken v. Bradley and forces white suburbs across the country to bus their kids into inner-city public schools, and to accept (disproportionately black and Latinx) students from poor neighborhoods bussed into their own schools. This would be the correct result, in my opinion. Milliken v. Bradley was a disastrous decision that drastically undermined the cause of school desegregation. But if such a ruling followed a court-packing effort, how much do you want to bet that the rich suburbs of Chicago’s North Shore would actually start bussing their kids to Englewood? Or that Beverly Hills would let students in from Compton? Or would they view the ruling as illegitimate and simply not obey?

You could imagine the same for any number of issues: Alabama refusing to issue same-sex marriage licenses and disobeying any Supreme Court rulings forcing it to obey Obergefell v. Hodges; South Dakota banning all abortions save when the life of the mother is at risk, and ignoring Supreme Court rulings striking the law down. If this all sounds far-fetched, let me quote ThinkProgress’s Ian Millhiser, who is broadly sympathetic to court-packing as a last-ditch effort to prevent the Supreme Court from entrenching economic inequality permanently: “packing the Court would effectively destroy the legitimacy of the federal judiciary and potentially embolden right states … to ignore decisions they don’t like. No more Roe. No more Obergefell. No more Fourth Amendment.”

Now maybe, ultimately, weakening the Supreme Court is a good thing. Plenty of legal scholars on both sides of the aisle have, for years, argued that the US goes too far in embracing judicial review; few other countries give their Supreme Courts the power we give ours to strike down democratically enacted laws. Even in Canada, the parliament and the provinces retain the power to reverse Supreme Court decisions with supermajority votes. Perhaps court-packing would set off a spiral that results in a dramatically weakened Court, and power returned to the states and Congress to settle contentious issues like abortion and desegregation and LGBT rights through democratic processes.

I’m extremely sympathetic to that argument. But it’s also possible that’s not what happens, that court-packing merely leads to more games of constitutional hardball and enables a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him. That, roughly, is what has happened in Poland, Hungary, Honduras, Venezuela, and Turkey. It could happen here too.