Democrats Are Courting Disaster

Ilya Shapiro

Democrats have finally decided to make judicial nominations an election issue, after essentially ceding the ground to Republicans for decades. Hillary Clinton barely mentioned Merrick Garland or the Supreme Court vacancy on the stump; this time around Democrats are going all in.

But forget the conventional play of highlighting policy areas where “Trump judges” differ from those a Democratic president would appoint: issues such as abortion, guns, affirmative action, voting rights, and campaign finance. This time, the Supreme Court itself is the target.

With their eyes on 2020, Democrats are calling for the court to be fundamentally restructured: adding justices, changing the way they’re picked, and limiting how long they serve. After all, the “illegitimate” conservative majority — Neil Gorsuch “stole” Garland’s seat, while Brett Kavanaugh “is” a serial rapist who hid his work on George W. Bush’s torture program — is also relatively young. Its oldest member, Clarence Thomas, is 70, while Clinton-appointed Justices Ruth Bader Ginsburg and Stephen Breyer are 86 and 80, respectively. Solution: Pack the Court!

Don’t take that description from me, listen to the Democrats’ own presidential contenders. In a series of interviews, Sens. Kamala Harris of California, Elizabeth Warren of Massachusetts, and Kristen Gillibrand of New York came out swinging for court-packing and more. Gillibrand echoed the common refrain that Gorsuch’s place on the court is illegitimate. Warren said that it’s “not just about expansion, it’s about depoliticizing the Supreme Court,” and also suggested bringing circuit judges onto Supreme Court cases, either in addition to permanent justices or (once the current ones are gone) as a rotating platoon.

The Democrats’ proposals to bend the courts to their wishes is just one facet of their plan to seize control by structural demolition.

“We are on the verge of a crisis of confidence in the Supreme Court,” Harris explained, “and everything is on the table to do that.”

Also possibly on that table (or other elevated surface) was former Rep. Robert “Beto” O’Rourke, who mused over the idea of court-expansion at an Iowa coffee shop. “What if there were five justices selected by Democrats, five justices selected by Republicans, and those ten then picked five more justices independent of those who chose the first ten?” “I think that’s an idea we should explore,” adding support for term limits. O’Rourke in turn was likely picking up on comments made earlier by South Bend Mayor Pete Buttigieg on the Pod Save America podcast.

Not all Democratic leaders are on board. New Jersey Sen. Cory Booker urged caution while endorsing term limits, as has California Sen. Dianne Feinstein, ranking member of Senate Judiciary Committee. But Minnesota Sen. Amy Klobuchar, who was initially skeptical, told Meet the Press, “I think you should consider it.” Former attorney general Eric Holder, who has ruled out a presidential bid, told a Yale Law School gathering that Democrats should “seriously consider adding two seats to the Supreme Court to make up for [Sen.] Mitch McConnell’s [R-Ky.] power-grabbing antics.”

Moreover, Brian Fallon, press secretary on Hillary Clinton’s 2016 campaign, has said that his new judicial-advocacy group Demand Justice, which has already aired digital ads, would play in the primaries by supporting candidates who favor reshaping the courts. Same thing for Pack the Courts, a new group led by San Francisco State University professor Aaron Belkin.

Why are progressive politicians and activists only now learning the lessons of past elections and telling their base voters that a president has few powers more important than picking judges? It’s a combination of frustration about the past and despair for the future. Even if the Left has won its fair share of judicial victories in recent years, thanks to Chief Justice John Roberts on Obamacare and Justice Anthony Kennedy on such things as same-sex marriage and affirmative action — his only vote in favor of racial preferences came in 2016 – “progressives” felt they were always on defense and were one step, one nomination, away from the precipice.

They hoped that 2016 would produce a sea change and that the Left, after winning the White House, would be able to switch to offense. In May of that year, Harvard law professor Mark Tushnet called for finally abandoning “ defensive crouch liberal constitutionalism,” while cautioning that “all bets are off if Donald Trump becomes President.” The Garland blockade, vindicated by Trump’s inside-straight win, felt like a gut punch, knocking all winds of optimism from progressive sails. The Janus decision last June, in which Gorsuch provided the deciding vote that freed workers from being forced to pay “agency fees” to public-sector unions, is likely to stanch an important Democratic flow of money, was the last straw. The Kavanaugh imbroglio — even if he was picked because this inside-the-Beltway, double-Ivy swamp creature was thought to be more palatable across the aisle — added insult to injury.

Before Trump, progressives complained vociferously about Citizens United, Shelby County, and partisan gerrymandering as examples of structural advantages that corporate interests, conservatives, and Republicans — all the same thing in this telling — enjoy thanks to the Supreme Court. In the Trump era, this is dialed up to 12: Now those aren’t mere partisan victories and losses but actual threats to democracy itself.

For the Left, it’s not a loss when the court rules against liberal interests. It’s a crisis.

“Because the Court has undermined the institutions of democracy, court packing is the only way to restore the integrity of the political system,” Pack the Courts said in a statement after the Holder comments. “To be taken seriously, presidential candidates must explain how they will restore democracy over the objections of a hostile and partisan Court.”

The Democrats’ proposals to bend the courts to their wishes is just one facet of their plan to seize control by structural demolition. Other notable examples are their drive to eliminate the Electoral College and lower the voting age to 16. Indeed, they’ve laid out a smorgasbord of power-grabs and speech restrictions included in a massive omnibus bill in the House. Those broader “reforms” are concomitant with the idea of making the nation safe for left-wing populism.

But it’s no surprise that court-packing has emerged as the first litmus test of 2020. “I think the Kavanaugh nomination has put a fire under progressives,” said Caroline Fredrickson, president of the American Constitution Society (the lefty counterpart to the Federalist Society), adding that it’s “not written in stone that the court has nine seats.”

Indeed, the Constitution doesn’t specify the number of justices, but each expansion was accompanied by political mischief. The Judiciary Act of 1789 set out six. Then an 1801 law, what became known as the Midnight Judges Act because John Adams rushed to fill new judgeships before his term expired, would have reduced the court to five members at its next vacancy — to thwart the incoming Democratic-Republican president, Thomas Jefferson. In 1802, Congress restored the court to six seats. Justice Samuel Chase, a Federalist, would be impeached (but not removed) the following year for opposing that restoration. As the country grew, Congress created new circuits, with new court seats to match. That all seems innocuous, but there were also convenient political reasons for adding them, ones that didn’t always inure to the nation’s benefit.

A seventh seat was added in 1807, in part because Jefferson wanted to check Chief Justice John Marshall’s Federalist proclivities. Marshall, however, proved strong enough to sway new justices as they arrived on the court. Eighth and ninth seats were added in 1837 and allowed a Jacksonian reshaping. Andrew Jackson had already gotten Roger Taney in as chief justice after his nomination to attorney general failed — and Taney would go on to author the notorious Dred Scott decision, with the support of justices appointed to those seats. Dred Scott ruled against citizenship for blacks whether free or enslaved, and is often seen as a catalyst for the Civil War.

A tenth seat was added in 1863, in part to allow Abraham Lincoln more leeway, but it was never filled. At the request of Chief Justice Salmon P. Chase (great-grandson of Samuel), and to prevent Andrew Johnson from appointing anyone, Congress in 1866 legislated that the next three justices to depart wouldn’t be replaced. That left the court at seven. In 1869, however, after two seats had been lost to such attrition, the Circuit Judges Act fixed the number of justices at nine, a number that has now survived 150 years, allowing the court to acquire the stability and prestige it never had previously.

The most famous example of attempted court-packing in the intervening time is, of course, Franklin D. Roosevelt’s Judicial Procedures Reform Bill of 1937. The president was fresh off a massive reelection in 1936 — the famous “as goes Maine, so goes Vermont” year, when FDR won 523-8 in the Electoral College — and frustrated with a spate of rulings against his New Deal programs. He proposed adding a new justice for every current justice older than 70½ who had served 10 years or more, up to a maximum bench of 15. This plan met heavy, bipartisan opposition from Congress — it didn’t get a vote, despite Democratic super-majorities — plus public opposition by the justices and FDR’s vice president. Chief Justice Charles Evans Hughes even testified before Congress against it. The plan led to huge losses for the Democrats in the 1938 election, with Republicans gaining 81 seats in the House and seven in the Senate.

As it happens, however, three weeks before FDR’s bill was formally introduced, the Supreme Court voted 5-4 to uphold Washington state’s minimum wage in West Coast Hotel v. Parrish. The ruling came from the surprising shift of Justice Owen Roberts and became known as “the switch in time that saved nine,” after which the court started to approve new federal programs. Conventional wisdom holds that Roberts had felt pressured by the court-packing plan, which thus succeeded even if never enacted. But historians have found that his decision predates even the public announcement of FDR’s bill.

Regardless of what actually happened with Roberts’s change of mind — history does rhyme, doesn’t it? — it was time itself that switched up the court, allowing Roosevelt to “pack” it without any novel legislation. By the end of 1941, retirements and deaths allowed FDR to appoint seven justices, with only two, Roberts and Harlan Fiske Stone (whom he himself elevated to chief justice), remaining from the court he inherited in 1933.

Since FDR, there have been no sustained calls for court-packing, though of course there were calls to “Impeach Earl Warren” in the Jim Crow South. As with most such proposals in our history, the partisan appeal is both evident and heavy-handed. But if Democrats think they’d be reuniting the country, righting the ship, then they deserve the political losses that such ends-justify-the-means radicalism will inevitably cause. And if they think that packing the court would restore “norms,” then they really don’t understand the nature of governance. Just as two wrongs don’t make a right, you don’t restore norms by transforming institutions — particularly when doing so would mean ending the legislative filibuster, which would open an even bigger can of worms.

Having said all that, there’s nothing inherently ideological or partisan about a larger court. After all, presidents of both parties would nominate however many justices there are. In addition to issues of judicial administration — the court could hear more cases and more efficiently process certiorari petitions if it had more members — there would logically be less significance to each one of, say, 19 seats, and presumably fewer 10-9 decisions than 5-4 ones today. So perhaps there would be less of a battle royale over every vacancy. For that matter, you could set an even number of justices, as some countries do, which would require at least a two-vote margin to take any action and ensure that there’s no one swing vote.

The problem comes in getting to the new number, whatever it is. If we were designing a Constitution from scratch, or passing the first judiciary act, we could depart from the current Supreme Court structure in all sorts of ways. But we’re not, so how do you get to an expansion of any kind that won’t result in a reciprocal expansion the next time the opposing party takes power? Even if the Democrats were to offer a deal whereby each party gets to pick nominees, the GOP would turn it down because a 5-4 ratio is better than a 7-6 one.

Presumably you would need a transition period, such that the reform only takes effect far enough into the future that we don’t know who’ll be in the White House. Would 10 years be enough? Or 12 (three presidential terms)? Politicians tend to be risk-averse, so I’m not sure this is viable. And even if one of these “delayed packing” plans went through, wouldn’t the same sort of natural attrition that ultimately benefited FDR also benefit today’s Democrats, except they’d have to suffer the “damage” from the current court in the intervening years? So we’re back to nakedly partisan tit-for-tat escalations.

What about term limits, which would produce predictable vacancies and “devalue” each nomination because no justice would serve the 25, 30, or even more years, as they do now? If justices had staggered 18-year terms, for example, we could have vacancies every two years and each presidential term appointing two justices. That sounds pretty good — a 2006 law review article by Steven Calabresi (Federalist Society co-founder and chairman) and James Lindgren convinced me — but it would almost certainly take a constitutional amendment to do it. Some scholars posit that if “senior justices” are still allowed to serve on the lower courts and fill in when justices are recused, that satisfies the constitutional requirement of life tenure, but I don’t buy it.

Serious reform proposals, not partisan packing, merit discussion, if only because maintaining public confidence in the Supreme Court is important. But ultimately, they’re rearranging the deck chairs on the Titanic. And the Titanic isn’t the judicial appointment or confirmation process, but rather the ship of government. The fundamental problem is the politicization not of the process but of the product.

The reason we have such savage court battles is that the federal government makes too many decisions, and within the federal government too many decisions have been sloughed off by Congress. There’s no more reason for a one-size-fits-all healthcare system, for example, than for zoning laws to be uniform in every city. Let legislators make the hard calls about truly national issues like defense and (actual) interstate commerce, but let states and localities make most decisions that affect Americans’ daily lives. That’s the only way we’ll defuse political tensions.

Regardless, the high court dynamic that we’d gotten used to, with four liberals, four conservatives, and a “swing,” is done, at least for the moment. With Kennedy’s retirement, the court is moving right, with the chief justice as the median vote for the first time in half a century. Chief Justice John Roberts will have even more incentive to indulge his minimalist fantasies and lead the court from the squishy commanding heights, but he is a surer vote for conservatives (maybe not libertarians) than Kennedy.

By filibustering Gorsuch, Democrats destroyed their leverage over the latest, more consequential vacancy. Moderate Republican senators wouldn’t have gone for a “nuclear option” to seat Kavanaugh, but they didn’t face that dilemma because the filibuster was already dead.

Of course, the judicial debates we’ve lived the last two years weren’t really about the nominees, just as the proposals for court packing aren’t about “good government.” While the people on President Trump’s judicial lists differ in various ways, they’re all in the conservative/originalist/textualist mainstream. They’re not “Trumpy” judges, whatever that means; there’s no Rudy Giuliani or Jeanine Pirro. Opposition to Gorsuch and Kavanaugh amounted to nothing more than a refusal to accept the 2016 election, a frustration that Hillary Clinton wasn’t making the picks. It’s a lament for a lost opportunity to move the court in a progressive direction. I get that, really I do, but as President Barack Obama liked to say, elections have consequences.

Ilya Shapiro s director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.