Democrats are furious over the push by President Donald Trump and Senate Republicans to move quickly on a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. They vowed to consider options for how they might respond if a confirmation vote is held before the presidential election Nov. 3.
Among the potential measures some advocated is the possibility of Democrats expanding the Supreme Court – an idea often referred to as court packing – if they win the White House and majorities in both houses of Congress. Supporters of such a move argue additional justices appointed during a Joe Biden administration would offset the conservative majority, which they said was unfairly established.
Sen. Ed Markey, D-Mass., said in a tweet that Senate Majority Leader Mitch McConnell, R-Ky., set the precedent that justices should not be confirmed in an election year when he denied Merrick Garland a vote in 2016.
"If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court," Markey said.
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
Former Attorney General Eric Holder, who has advocated for expanding the court since Garland's blocked nomination, told MSNBC the conservative majority on the court is "illegitimate."
"If, in fact, they are successful in placing a justice on the court," Holder said, "we need to think about court reform. And at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court."
John Dean, who served as White House counsel under President Richard Nixon, argued it was Senate Republicans under McConnell who packed the federal judiciary with conservatives and Democrats should add judges and justices to "depoliticize" it.
Could Democrats do it?
In short, yes. If Congress wanted to change the size of the court, it could, with a president willing to approve it or enough support to override a veto.
"There's nothing in the Constitution that limits the size of the Supreme Court," Josh Blackman, a professor at the South Texas College of Law, told USA TODAY. "It's fluctuated over time."
The Supreme Court's website says, "The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates."
The number of justices through the Civil War went from a low of five to a high of 10. Congress has not changed the size of the court since the Judiciary Act of 1869, when it was set at nine.
Has it been done?
Harvard Law Professor Mark Tushnet told USA TODAY the size of the court was changed for political reasons several times before 1869. Tushnet who sits on the advisory board of Take Back the Court – a group that advocates for expanding the number of Supreme Court justices as "the only strategy that rebalances the court after its 2016 theft."
Tushnet said Congress expanded the court during the Civil War "to make sure that there'd be a Republican majority on the court. And then, when Andrew Johnson became president, they reduced the size of the court so that he wouldn't be able to appoint unsympathetic justices."
In 1937, President Franklin Roosevelt pushed for an expansion of the court, which had ruled many portions of the New Deal unconstitutional. The political battle over the effort dragged on for months and ultimately failed despite strong Democratic majorities in both houses of Congress.
Tushnet said that since then, people have taken Roosevelt's failure "as an indication of the political, and perhaps constitutional, danger of changing the court size for political reasons."
A danger to democracy?
In their 2018 book, "How Democracies Die," Harvard University professors Steven Levitsky and Daniel Ziblatt argue that if Roosevelt had succeeded, "it would have set a dangerous precedent."
"Had Roosevelt passed his judicial act, a key norm – that presidents should not undermine another coequal branch – would have been demolished," they wrote.
Levitsky and Ziblatt cited court packing as one of the tools democratically elected autocrats such as Hungary's Viktor Orbán or Venezuela's Hugo Chávez used to weaken their opposition.
They said expanding the court would make it "hyperpoliticized," making "its membership, size and selection rules open to constant manipulation, not unlike Argentina under Perón or Venezuela under Chávez."
Harvard Law Professor Laurence Tribe told USA TODAY that if Democrats expand the court for political reasons, they risk "an unending escalation" in which each party changes the size of the court when it has the political power to do so.
Tribe denounced Republicans' handling of Garland's nomination and Ginsburg's vacancy as "hypocrisy" and "unprincipled." He said changing the court in retaliation is an "understandable impulse," but in the long run, it could mean sacrificing "the idea of the Supreme Court as a stable institution, one of the few that can provide a kind of ballast for the ship of state."
"And the long run matters," he said.
Tushnet acknowledged the risks but said Republicans forced Democrats to play "constitutional hardball."
"If Republicans play hardball, it seems to me perfectly appropriate for Democrats to play hardball in response," Tushnet said. "When one side plays hardball and the other doesn't, that can erode democracy, too. And mostly, that's what we've experienced in the United States already."
Would Democrats go ahead with it?
Democratic leaders suggested they are leaving all options on the table but haven't explicitly commented one way or the other on whether they would consider changing the size of the court.
Sunday, House Speaker Nancy Pelosi, D-Calif., said, "We have our options. We have arrows in our quiver that I’m not about to discuss right now," when asked about the possibility of another impeachment on ABC News' "This Week."
When asked about the possibility of packing the court if Republicans push through a nominee before the election, Pelosi said, "Well, let's just win the election. Let's hope that the president will see the light."
"If leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year," Senate Minority Leader Chuck Schumer, D-N.Y., declared Saturday, according to Politico.
Before Ginsburg's death, several 2020 Democratic primary candidates, including Sen. Kamala Harris of California – who is Biden's running mate – expressed support for the idea of expanding the court.
Biden opposed the idea.
In July 2019, he told Iowa Starting Line that if Democrats packed the court, they would "live to rue that day." In a debate in October, he said, "I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."
Biden did not directly address expanding the court when he spoke Sunday in Philadelphia about the vacancy created by Ginsburg's death. He said that if the nominee was left to him, he would follow a "process that extends our finest traditions" and rejects the partisanship that "has torn the country apart for the last years."
This article originally appeared on USA TODAY: Ruth Bader Ginsburg: Could Democrats expand the Supreme Court?