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President Trump’s two appointments to the Supreme Court have ensured that the nation’s top judicial body will have a conservative majority for the foreseeable future. The confirmations of Neil Gorsuch and Brett Kavanaugh — both of which sparked controversy — solidified a 5-4 majority of justices chosen by Republican presidents. Even if Democrats take back the White House in 2020, the party is potentially looking at a decade or more before it will have a chance to tilt the court back in a liberal direction.
Faced with the prospect of decades of conservative control of the high court, some liberals have floated a novel idea to regain power: adding more seats to the Supreme Court that could be filled by a Democratic president if the party takes control of the Senate in 2020.
There’s nothing in the Constitution that designates how many seats the Supreme Court should have. That decision is up to Congress. In fact, the number of justices on the high court changed six times before 1869, when Congress finally settled on nine seats.
In the 1930s, President Franklin D. Roosevelt proposed adding seats to the Supreme Court to circumvent a judiciary that was blocking his New Deal policies. He came up short, but the threat was seen as having compelled the sitting justices to stop standing in the way of his programs. Seven of the current Democratic presidential candidates have said they’re open to the idea of increasing the number of justices on the court.
Why there’s debate:
Advocates for expanding the Supreme Court say it may be the only way to rebalance an institution that has developed a strong conservative majority through what some consider illegitimate means. A series of recent decisions — such as the rollback of the Voting Rights Act and the high court’s failure to act on partisan gerrymandering — show that the court is already driven by partisanship rather than judicial prudence, some argue. “We are on the verge of a crisis of confidence in the Supreme Court,” Sen. Kamala Harris said.
Some liberals fear that a conservative Supreme Court will block the party’s progessive agenda if voters show a strong preference for Democrats in 2020. This would, in their eyes, effectively allow a handful of judges to subvert the will of the people.
Increasing the number of Supreme Court justices has, however, received strong criticism from both the left and the right. Senate Majority Leader Mitch McConnell called court-packing plans a “direct, immediate threat to the independence of the judiciary and the rights of all Americans.” Many Republicans see the proposal as a desperate move by Democrats who are unable to gain power in a system that’s been seen as equitable for 150 years.
Liberal critics worry that if Democrats press ahead and increase the number of justices, Republicans will promptly do the same when they return to power. This could lead to a bloated, broken Supreme Court that expands whenever control of Washington changes hands.
Democrats need a lot of things to go right before they can be in a position to even consider expanding the high court. They’d need to take the White House and Senate in 2020, as well as hold on to the House. Even then, they’d likely need to eliminate the filibuster to get court-packing legislation through the Senate. Despite these long odds, it’s reasonable to expect the subject to be a central issue in the 2020 election. An increasing number of voters from both parties say the court is very important to them.
Republican maneuvering has undermined the legitimacy of the court
“There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.” — Jamelle Bouie, New York Times
Without expanding the court, a popular progressive agenda would be blocked
“Even if Democrats were to take the White House and the Senate in 2020, earning a popular mandate to revolutionize health care in America and spare the planet from human-induced heat death, a conservative Court would put every legislative effort to solve these seemingly-intractable problems in an immediate, permanent state of legal jeopardy.” — Jay Willis, GQ
History shows the court remains independent after the number of justices changes
“A moment’s reflection on the history of the Court shows that it remained fiercely independent after each of the seven instances in which Congress changed its size. It is difficult to believe that a future expansion of the Court would break this mold. Far from leading to democratic death spirals, changes to the size of the Court have gone hand in hand with the most vibrant periods of our democracy.” — Tim Burns, New Republic
Congress is obligated to act when the court is standing in the way of democracy
“The framers left it up to Congress as a check on the court to determine the makeup of the court. ... And so, if you have a court that is out to subvert the very democratic basis of the country, as is the case today, it is not only allowable for Congress to step in — it is Congress’ job to step in and check the courts.” — Pack the Courts founder Aaron Belkin, Slate
Growing the court might lead to more moderate decisions from current judges
“And if things do turn out well for Democrats and they enjoy a governing trifecta in 2021, they could emulate FDR in utilizing court-packing or similar reforms as a way to get the attention of conservatives and perhaps secure their agreement to de-escalate their politicization of the courts.” — Ed Kilgore, New York
Democrats discuss court packing only because they’ve failed in the current system
“Democrats are losing the Supreme Court because their ideas are unpopular, not because of the number of justices. Should they prevail with the public, the Supreme Court won’t be far behind.” — Bruce Fein, American Conservative
Republicans would just add their own justices when they got back in power
“Court-packing isn’t really a permanent solution, since the two parties enter in a never-ending cycle of one-upmanship as each side seeks to expand the Supreme Court when its side is in power — a recipe for an unwieldy court and increased partisanship on the court.” — Jennifer Rubin, Washington Post
Adding justices to the court would be a death blow to an independent judiciary
“In one swoop, it would irreparably destroy the American tradition of judicial independence of the political branches. In short order, this would end the American experiment of the rule of law and a government of separated and limited powers.” — Dan McLaughlin, National Review
Expanding the court would only make partisanship on the court worse
“There is already too much partisanship surrounding the judiciary, especially the nomination and confirmation of justices in the modern era. We should not contribute to that unfortunate reality by legislative fiat.” — Peter G. Verniero, NJ.com
It would be an unnecessary escalation in response to Republican underhandedness
“Court-packing would be a dangerous step beyond previous judicial nomination shenanigans because, unlike them, it threatens to destroy the entire institution of judicial review. ... That would ensure that the Court would almost never rule against any significant initiative of the party in power, no matter how dangerous and unconstitutional.” — Ilya Somin, Reason
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Cover thumbnail photo illustration: Yahoo News; photo: Michael S. Williamson/The Washington Post via Getty Images