This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
In the wake of Justice Amy Coney Barrett’s elevation to the Supreme Court, the tide of support for Supreme Court expansion is rising within the Democratic party. With prominent Democratic elected officials like Minority Leader Chuck Schumer saying that “nothing is off the table” after the election, and Vice President Biden announcing that he will establish a bipartisan commission of scholars to examine court reform, the idea of adding Justices has surged further into the mainstream than it has been in almost a century.
And for good reason. Republicans have consistently and brazenly used every lever of power to secure seats for Republican appointees. In 2016, that meant refusing to consider President Obama’s nomination of Judge Merrick Garland because, they said, the vacancy arose in an election year. In 2020, that means voting to confirm Judge Barrett just a week and a day before an election. In the face of that unabashed exercise of pure power, unconstrained by constitutional norms or even basic consistency, Democrats are understandably tempted to grasp at a lever of their own to counteract Republicans’ willingness to bend the rules in their favor.
The time for doing nothing is over. Democrats must either pack the Court themselves, or prevent Republicans from doing so down the road. In attempting to explain his blatant reversal on whether to confirm a Justice in an election year, Sen. Lindsey Graham (R-SC) claimed (without any real evidence) that Democrats “would do the same.” When (not if) Republicans control the presidency and Congress sometime in the future, he might well say the same thing about court packing. Whether or not Democrats add Justices in 2021, Graham’s invented logic reveals the robustness of Republicans’ perceived right to add Justices when they have the power and the desire to do so. A status quo in which one party plays by the norms and the other party flouts them is just asymmetrical hardball that acquiesces to the party that flouts norms. Unilateral disarmament is madness.
That presents the Democrats with a stark choice: pack the Court, or reform it to prevent Republicans from doing so in the future. Either path has pitfalls. Opponents of court packing, even those like me who have advocated a permanent solution through a constitutional amendment, have never explained why Democrats should let Republicans have the last punch. And advocates of court packing have never explained how it wouldn’t lead to a chaotic cycle of reciprocal escalations in which each party adds more and more seats when they are in power.
Such retaliation is inevitable. After all, the entire justification for packing the Court is that Republicans have already trampled norms about Supreme Court appointments twice with the nominations of Judge Garland and Judge Barrett. It is naïve to think they wouldn’t do so again. The better alternative, we argue, is to regularize appointments to one new Justice every two years with 18-year term limits. Over time, the Court will come to better reflect the partisan balance of the country.
The singular circumstances in this election year, however, reveal a deeper anxiety fueling the drive to expand the Court that washes over concerns about retaliation: that this is democracy’s last chance. Adam Serwer argued in the Atlantic that “reaching a détente between the parties is less important than preventing the Court from foreclosing on democracy for millions of vulnerable people.” If the Court rolls back voting rights and lets Republican assaults on the franchise stand, then the notion that regularizing appointments solves the problem is itself hopelessly naïve. If our law entrenches minority rule in elections, then ensuring that the Court’s makeup reflects the long-term partisan balance of the political branches will just echo that distortion.
Even so, that view overlooks the fact that court packing would be possible only if Democrats win the Presidency and both houses of Congress notwithstanding the Court’s stance on voting rights. That wouldn’t mean that the political playing field hasn’t been tilted, but it would mean that Democrats were able to overcome that disadvantage in this election. And although Justice Barrett will sit on the Court for decades, that wouldn’t mean that the Supreme Court would be dominated by conservatives for a generation. President Trump has made three nominations to the Supreme Court in his first term. What would be a 6-3 conservative majority in early 2021 could very well be a 5-4 or even 6-3 liberal majority by the end of a President Biden’s first term.
So instead of packing the Court, which would grant Democrats only a fleeting advantage on the Court that would provoke partisan retaliation, they can instead choose to seize this moment to enact true reform that de-politicizes the judiciary. The most often proposed solution is simple: fixing the size of the Court at nine Justices, imposing an 18-year term rather than a life appointment and setting a regular appointment schedule of a new Justice every two years.
There are still details to be resolved. How do we transition from the current structure of the Court to the new, reformed version? How do we prevent the sort of stonewalling in the Senate that prevented President Obama’s appointment of Judge Garland? There are promising ideas about how to address these complications, and there has never been a time in American history that has been better suited to fixing this flaw in our Constitution.
That casts Democrats’ choice between packing the Court and reforming the Court in a different light. The damage to our democracy that Serwer and other court-packing advocates fear might be more ephemeral than lasting. Balanced against those fears, we can foresee the inevitable reciprocal court-packing that will render any judicial victories fleeting and our law chaotic. The status quo is no longer viable; Democrats cannot risk another round of constitutional hardball when they abide by norms that Republicans ignore. The best strategy might thus be an offer backed by a promise: fix the Court with us, or we will pack the Court without you.
Matthew A. Seligman is a Supreme Court litigator and legal scholar in Washington, D.C. He is currently teaching a seminar at Harvard Law School on disputed presidential elections.