With Brett Kavanaugh’s confirmation nearly certain—and perhaps other right-wing justices to follow in coming years—Democrats are going to face a fundamental choice about the Supreme Court the next time they control the presidency and Congress and try to carry out substantial reforms.
When that moment comes in 2021, 2025, or later, the Court will likely have reversed many long-standing liberal precedents and policies and be poised to strike down new progressive initiatives. Many people assume there is nothing Democrats could do that in that circumstance. But instead of simply acceding to the Court’s dictates, they could take a fateful step that the Constitution leaves open: increasing the size of the Court and appointing additional justices to shift the balance.
This was, of course, what Franklin D. Roosevelt tried to do after being re-elected in 1936, when he faced a Court that had overturned major New Deal programs. FDR didn’t invent the idea of changing the size of the Court to overcome judicial opposition. Congress changed the number of justices repeatedly in the nineteenth century. In 1863 congressional Republicans added a tenth seat to give Lincoln an additional appointment; after Lincoln’s assassination, they reduced the number of justices to seven to deny any nominations to Lincoln’s successor, Andrew Johnson. Then they re-enlarged the Court to nine in 1869 when Ulysses Grant became president.
FDR’s “court-packing” proposal is usually remembered as a failure because Congress rejected it. But, in fact, both the Republicans of the 1860s and FDR succeeded in deterring the Court from blocking their reforms. In FDR’s case, one conservative justice changed sides in 1937 and voted to uphold the National Labor Relations Act and a state minimum-wage law. A “switch in time saved nine.”
Another such effort to shift the Court would be unthinkable if both parties continued to respect the norms for court nominations that prevailed in the mid- and late 20th century. But Republicans have already violated those norms by denying a hearing or a vote to President Obama’s nominee Merrick Garland and effectively stealing a seat. They are also pushing through Kavanaugh’s confirmation on a partisan basis, despite the fact that in this case the president is under investigation for obstruction of justice and his motivation for choosing Kavanaugh seems directly related to the judge’s views about executive power and privilege. If there were ever a moment for putting aside a president’s nominee, it wasn’t in Garland’s case, it’s in Kavanaugh’s.
The Republicans are playing what Mark Tushnet calls “constitutional hardball,” leaving Democrats little choice but to respond in kind. Some legal scholars and observers recoil at the idea of playing tit-for-tat. But Tushnet argues Democrats would be justified in adding two additional seats to reverse what Republicans did with Garland. To those who say such a measure would violate political norms, Tushnet responds that it would, in effect, be an effort to establish a new norm:“You can't steal a Supreme Court seat and expect to get away with it.”
Unless Democrats are going to roll over and give up any hope of carrying out their policies, they are going to need to play constitutional hardball to reverse the illegitimate gains Republicans have made in controlling the Court.
Does that make you nervous? It should.
After all, we need a judicial system that stands separate from partisan politics. And if Democrats can retake the majority on the Court by adding new justices, Republicans could subsequently do the same when they have the chance.
Two good things, however, could come of a decision by the next Democratic president to seek to enlarge the Court. First, as in 1937, the threat alone could have a deterrent effect if the justices began exercising restraint in substituting their judgment for that of the elected branches.
Second, Democrats and Republicans might end up negotiating a permanent change in the tenure of Supreme Court justices that would reduce the intense pressures surrounding court nominations and confirmations. Under the current system, not only do justices have lifetime tenure; they can often perpetuate their views on the Court by stepping down only when a president from their own party is in office. That is what Anthony Kennedy is doing, and that is what Ruth Bader Ginsburg failed to do while Obama had the ability to replace her. It is absurd that so much politically should ride on the individual justices’ personal decisions and longevity.
Under an alternative proposed by a group called Fix the Court, justices would have 18-year terms on a nine-member Supreme Court, and presidents would make biennial appointments. Hence a president would get two nominations in a four-year term. Since the Constitution has so little to say on the subject, the change might be made through ordinary legislation, though some say it would require a constitutional amendment.
It’s impossible to anticipate the exact political circumstances years from now when Democrats regain power in the White House and Congress and face the likely obstruction of a right-wing Supreme Court majority. But the crisis is virtually certain to come, and both court enlargement and other institutional reforms of the judiciary will need to be part of the discussion about the political options.
In the political era that's now emerging, Democrats will not be able to count on the courts to make progressive changes; they’ll have to make advances the old-fashioned way by winning elections. And when they do win elections, they’ll face the additional challenge of breaking a judicial blockade. It will be one hell of a fight, but they won’t be able to shrink from it.