As the US election draws nearer and the political temperature steadily increases, repeatedly passing what we would have thought were boiling points a decade ago, some on the Democratic side are allowing themselves to look beyond 3 November and consider the prospect of actually governing. No one can blame them for exercising caution — especially after the shock of 2016. Trump’s defeat is far from a done deal, and my instinct is to focus all our attention on defeating him and securing a peaceful transition.
Lessons from Recent History
However, such a laser focus on securing victory could prove extremely damaging if it prevents Democrats confronting the serious problems they are likely to face in government. Even if the party can take back the Senate, its ability to govern will be severely constrained. Biden seems confident he can resurrect a spirit of bipartisan compromise in Washington. Maybe. But he would be foolish to forget the lessons of Barack Obama’s presidency, where a naïve optimism about both parties’ willingness address serious problems facing the country through legislation was dashed upon the rocks of Republican intransigence.
Such scepticism risks sounding nakedly partisan, so it really is worth refreshing our memory of the Obama years. On the very same weekend of the new president’s inauguration, infamous billionaire activist Charles Koch held a secret gathering of rich and well-connected conservatives. Jane Mayer pieces together the details of this summit in her excellent book Dark Money (2016), recounting a heated debate between Republican senators John Cornyn (TX) and Jim DeMint (SC). While Cornyn counselled moderation, DeMint, in Mayer’s words, ‘portrayed compromise as surrender’. Bolstered by billionaries such as Koch, the latter impulse won out. The Republican Party won control of the House of Representatives in the 2010 election and the Senate in 2014. In both houses, they dedicated themselves to unprecedented obstruction of the Obama agenda. To pick just one example, the Senate, under current leader Mitch McConnell, refused to even vote on hundreds of Obama’s nominations to the federal courts. This culminated in the Senate’s flat refusal to hear Merrick Garland, nominated to the Supreme Court by Obama in March 2016 to fill the seat vacated by Justice Antonin Scalia’s death.
Strict constitutionalists may note that this is quite an expansive interpretation of the Constitution’s requirement that presidential court nominations be subject to ‘advice and consent’. Those with a basic distaste for hypocrisy may also note those same Republican senators’ abandonment of the so-called ‘Biden rule’ when a Republican president nominated a justice to fill a vacant seat on the very next presidential election year.
Some of these issues, of course, will be overcome if the Democrats can win control of Congress. Others will take significant procedural reforms such as abolishing the filibuster, the Senate rule by which a 60-vote supermajority is required to end debate and force a vote on a bill. Whether the Democratic Party will attempt to do so is up in the air, but abolishing the filibuster would be no great constitutional change, as recent reforms have seen it done away with for judicial appointments (by Democrats) and for Supreme Court appointments (by Republicans). Getting rid of the filibuster would certainly be notable, but it would not have any great implications for US democracy.
The same, however, cannot be said of court packing.
Court Packing
‘Court packing’ refers to increasing the number of justices on the Supreme Court. It’s a loaded term, probably dating to a New Deal-era constitutional struggle — on which there will be more later. The procedure is, in theory at least, relatively simple: the number of justices can be changed by an ordinary Act of Congress, passed in both houses and signed into law by the sitting president. No constitutional amendment is required, as the number of justices is never specified in the Constitution. Congress cannot remove justices without good evidence of wrongdoing, as the Constitution dictates that they serve ‘during good Behaviour’, but there is no legal restriction on creating new seats and filling them by the usual procedure.
The reason Democrats might wish to do this should be obvious: if Biden becomes the next president, at least one seat on the current court will have been stolen, and should rightfully have been appointed by a Democratic president.* To descend from the high-minded principle of revenge to the practical realities of politics, Democrats also recognise that a 6–3 conservative majority on the court jeopardises their ability to make meaningful policy.
Every justice on the court claims to be nonpartisan, guided solely by the light of the Constitution as filtered through the prism of their professional legal reasoning. But every justice also has unavoidable, undeniable political leanings. Presidents know this when they nominate justices, and though most tend to avoid putting outright firebrands before the Senate, all seek to appoint a justice that will enable their preferred policy goals and frustrate those of their opponents.
Court packing, then, is not unconstitutional. So why is it important?
One answer is tradition. Though it is an Act of Congress like any other, the Judiciary Act 1869 is over 150 years old, and many Americans are rightly cautious about the possible consequences of overturning such a venerable precedent, not least because doing so would make it quite difficult to cry foul over future attempts to do the same. Some commentators on the left currently sound uncomfortably like domestic abusers, shaking their fists at the right as they mutter ‘you see what you made me do’, and it is not hard to imagine Republicans responding in kind if and when they return to power.
Another, more important answer points to the damage court packing may do to liberal democratic norms. There may be nothing illegal about changing the number of Supreme Court justices, but doing so to the clear, perhaps even stated, end of protecting Democrats’ preferred policy goals certainly seems to undermine the spirit of an independent judiciary. Even the most stable political systems ultimately rest on popular consent. In the case of Supreme Court rulings, this is especially true. The court cannot enforce its own decisions; it relies on a shared perception of its legitimacy. The more nakedly partisan the court becomes, the more that perception of legitimacy is shaken.
The final answer, and perhaps the most important, concerns the stakes of US politics — and how court packing would raise those stakes. The failure of compromise means major social issues are decided by the courts rather than through legislation. Each policy battle thus threatens to become a battle over the meaning of the Union’s founding document — over the very ideas, powers, and limits that constitute that union.
We do not need to pretend that both sides’ causes are equally valid to understand where this leads us. Those on the left who see the legality of gay marriage as self-evidently guaranteed by constitutional provisions for equal rights should consider how they would feel about an issue as thorny as abortion if they genuinely believed, as many conservatives no doubt do, that unborn babies are routinely and casually stripped of their fundamental right to life. In both cases, it is tempting to argue that no legislation is necessary — that the Constitution has already settled the issue. In both cases, this would be a mistake — a totalising reduction of a complex issue to a simple question that was already adequately answered more than two centuries ago. One does not need to be an originalist to consider that perhaps the Founders, for all their achievements, should not remain the final authority on twenty-first century social policy.
The Constitution sets limits, outlines how the branches of government are to check and balance each other, and guarantees to its citizens the most basic rights. It does not provide an answer to any policy question we may wish to ask. Nor can it. Nor should it. If they pack the court, Democrats will be adding to the heavy weight already placed on the Constitution.
What, then, is to be done? Sadly, I cannot answer that. In 1937, the mere threat of court packing, combined with the remarkable political strength of the New Deal coalition under President Franklin Roosevelt, was enough to convince the Supreme Court to back down, reversing its opposition to minimum wage laws in West Coast Hotel v. Parrish. This ‘switch in time’ did indeed ‘save nine’, and helped secure the legitimacy of the New Deal welfare and regulatory state for most of the twentieth century. Will today’s Supreme Court similarly back down to maintain its legitimacy and the legitimacy of the system as a whole? The question remains open. But I don’t know if I would bet on it.
*If you side with 2016’s Mitch McConnell, Ruth Bader Ginsburg’s seat should have been filled by the next president — the winner of the 2020 election. If you side with 2020’s Mitch McConnell, Antonin Scalia’s seat should have been filled by the then-current president — Barack Obama. Whichever logic you choose to follow, at least one of the current justices must be illegitimate. Whether it is Neil Gorsuch or Amy Coney Barrett hardly matters.
