Patrick Semansky, Associated Press An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020. Rep. Andy Biggs (R-Ariz.) is alarmed that Democrats might expand the membership of the Supreme Court the next time they hold the presidency and Congress. His Republican colleagues on the House of Representatives Judiciary Committee all agree with him.
Earlier this month, on a straight party-line vote, the committee passed a proposed constitutional amendment to freeze the court at nine justices, which would, as Biggs put it, prevent Democrats from “threatening to pack this iconic American institution.”
It is true that leading Democrats, including former Vice President Kamala Harris, have welcomed “ideas, for example, that are about Supreme Court reform, including the notion of expanding the court.” But it is wrong to call it court-packing. In fact, the Supreme Court has already been strategically stacked by President Trump and his Senate allies, entrenching an illegitimate conservative supermajority.
Adding four seats under the next Democratic trifecta would actually be unpacking the court.
After Justice Antonin Scalia died on Feb 13. 2016, President Barack Obama nominated Merrick Garland to replace him, under Article II of the Constitution.
Senate Majority Leader Mitch McConnell (R-Ky.) deployed Senate rules so that Garland did not even get a committee hearing, let alone a vote on the Senate floor. Because it was an election year, McConnell said, the Supreme Court vacancy “should not be filled until we have a new president.”
Scalia’s seat remained empty, leaving an eight-member court for more than a year. Trump’s nominee to replace him, Neil Gorsuch, was confirmed on April 7, 2017.
Justice Ruth Bader Ginsburg then died on Sept. 18, 2020, when absentee voting was already underway for the November presidential election. This time, there was no talk from McConnell or any other Republican about waiting for the next president. Amy Coney Barrett’s nomination was rushed through in near-record time. She was confirmed on Oct. 26 and sworn in the following day. It was barely a week before Joe Biden would be elected president.
That is what court packing really looks like.
The packed right-wing supermajority brought the most extensive retraction of individual and democratic rights since the end of the Jim Crow era, with the reversal of Roe v. Wade, the immunization of Trump for crimes committed in office, the authorization of relentless partisan gerrymanders and most recently the evisceration of the Voting Rights Act.
None of those results would have been possible without the Republicans’ unprecedented court-stacking.
Legislative maneuvering empowered Trump to appoint Justices Gorsuch and Barrett, following an election he lost by nearly 3 million popular votes. Because the Constitution grants justices life tenure, there is only one realistic way to undo McConnell and Trump’s court-stacking.
There is no constitutional impediment to court expansion. Article III simply provides that the judicial power of the U.S. is “vested in one Supreme Court,” leaving its composition to be determined by Congress. The number of authorized seats has fluctuated over the years, ranging from five to 10.
Legislation changing the size of the court was signed by Presidents John Adams, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant. A significant expansion came during the Civil War, when the Republican Congress added a 10th seat for Lincoln to “appoint Justices who favored the Republicans’ agenda of combatting slavery and preserving the union.”
Arguments against expanding the court typically invoke the proverbial slippery slope. If Democrats expand the court at their next opportunity, the warning goes, Republicans will just do the same when they get the chance.
Maybe they would and maybe they wouldn’t — but so what? The fact is, we are already sliding down a slick decline, which began during Trump’s first term. As anyone who has driven on ice understands, a sudden stop on a slippery slope is the surest way to crash to the bottom.
The claim that Democrats must acquiesce to Republican court-stacking resembles the classic excuse of bullies everywhere: It all started when they hit us back.
Republican stalwarts like Sens. Ted Cruz (R-Texas) and Chuck Grassley (R-Iowa) understand that they have reliable support from the current Supreme Court majority. Thus, they inveigh against what they call the “Democrats’ radical court-packing scheme.”
Republicans spent decades on a campaign to achieve a conservative court majority. The Democrats now need to play a similar long game for there to be any chance of returning women’s rights, ending partisan gerrymanders and restoring minority voting power.
In the meantime, dozens of progressive organizations and more than 100 prominent political figures, including over 60 members of Congress, have endorsed court expansion. (My daughter is the president of the Take Back the Court Action Fund, which compiled the list of endorsers.)
The current court majority is the product of Republican obstructionism and chicanery. Senate rules were manipulated to stack the court. Constitutional means are available to unpack it.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
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