Don’t Pack the Supreme Court
By: Fernando Betancor
Tags: Supreme Court, USA, SCOTUS

The election of Joe Biden and Kamala Harris to the White House has generated a vast enthusiasm among Democrats to “reform the system” with various proposals vying for attention of the incoming Administration. Tax reform, climate change, student debt, infrastructure, civil-police relations: there is a laundry list of progressive proposals that merit the limited scope for action[i] that Joe Biden will enjoy when he is inaugurated. There are few actions that provoke as much fervor as the suggestion that Biden expand the Supreme Court and add more progressive justices to the current bench.

Democrats were justifiably outraged by the unprecedented decision of Senate Majority Leader Mitch McConnell to ignore President Obama’s nomination of DC Appeal Judge Merrick Garland to replace Antonin Scalia in March 2016, as we saw in a previous article. Citing the fact that it was an election year, McConnell refused to schedule a hearing — something the Senate has never done in the history of the Senate. Not only did this leave Justice Scalia’s bench vacant for more than a year, until it was filled in April 2017 by Neil Gorsuch; it also prevented Ruth Bader Ginsberg from retiring during a Democratic Presidency. She was obliged to soldier on in the hopes of outlasting Donald Trump, which she ultimately proved unable to do.

When Justice Ginsberg died in October this year, Democrats appealed to Senator McConnell to apply “the same process, the same principle” he espoused during President Obama’s last year in office to wait until after the imminent election, less than a month away, before hearing any nomination to the vacant position. Appealing to Mitch McConnell’s principles is like the frog appealing to the scorpion. Not only did the Senate hold hearings on Amy Coney Barrett’s nomination, it approved her in near record time[ii].

Democrats thus feel that the Republicans are playing dirty pool and have swindled them out of not one but two Supreme Court seats; and the remediation they call for is an expanded Supreme Court. Republicans respond with outrage at the suggestion, though outrage comes cheap to the hypocritical McConnell and the Republican senators of the Judiciary Committee. Hence Senate Minority Leader Chuck Schumer’s comment of “nothing is off the table” regarding a possible expansion of the court[iii].

How reasonable is this suggestion to expand the court? Is it a threat to democracy and the Constitution, as Republicans are now claiming? Or is it a reasonable measure with historical precedent, as Democrats assert? In either case, it is likely to be politically toxic and ultimately self-defeating.

SCOTUS in 30 Seconds

The Supreme Court is established in article three of the US Constitution:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”

This article establishes the court but makes no mention of how many justices shall be appointed to it. Article I, Section 3, Clause 6 also mentions a “Chief Justice” presiding over the impeachment of the President, but nowhere else is the number of associated justices mentioned.

The number of justices on the Court has varied considerably over the years. The Judiciary Act of 1789 established a Chief Justice and five associate justices, who would also ride circuit to newly created federal courts in the different regions of the new nation. The number of justices was expanded to seven in 1807, nine in 1837, up to ten in 1863, back to seven in 1866, then back up to nine in 1869, where it has remained since. These early expansions of the court were largely tied to the expansions of the Federal circuit court system as the nation expanded westwards, though it would be wrong to think that there was ever some “mystical era” when politics did not play a predominant role in selecting who sat on the bench.

“Packing the court” is a derogatory term that was first applied to Franklin Roosevelt’s effort to increase the number of justices to overcome court opposition to elements of his New Deal. Roosevelt wasn’t the first President to try to circumvent the court by this tactic. In 1870, the Court heard a case[iv] that challenged the constitutionality of the Federal Government printing money as legal tender — a necessity to finance the recently ended Civil War. The Court found in favor of the plaintiff by 4–3, which is ironic considering that the Chief Justice — Samuel Chase — was the same man who as Treasury Secretary during the war had been the architect of the greenbacks plan. Hypocrisy is not a modern invention either. President Grant and the Republican Congress feared that this ruling would be very harmful to business and lead to a financial crash, so on the same day of the ruling, Congress expanded the number of Supreme Court seats by two and President Grant nominated two pro-greenback Republicans who were approved by acclamation. The Court heard two more paper money cases[v] and in 1871 found in favor of the government by a 5–4 margin.

Packing at its finest. But then again, Ulysses Grant is remembered as one of our worst Presidents.

Herein lies the danger of court packing proposals, they are such blatantly partisan maneuvers that even in an age of corruption and invective like the 1870’s, it seriously compromised the reputation of the Grant Administration. The modern Supreme Court, for all the claims of judicial overreach, has successfully positioned itself as the least partisan and most consistently popular of the three branches of government:

Americans of all political leanings are remarkably united in their respect for the court. Compare this with the approval ratings of the other two branches: the Executive oscillates between 45% and 55% while Congress rarely rises above an abysmal 25% approval. The thought that Congress is likely to come off well with the American public after picking a fight with the Supreme Court and packing is ludicrous; the party responsible for this action is likely committing political suicide in the next election.

Not even the GOP, for all its duplicity, suggested that it would pack the court when President Obama nominated Sonia Sotomayor and Elena Kagan to the high bench.

I am against the proposal to pack the courts. I believe that it will be damaging to the Democratic Party and the Biden Administration, guaranteeing them a significant loss in the mid-term elections of 2022. It would set a dangerous precedent and absolutely ensure that the Republicans would retaliate as soon as they won an election that gave them control of the Senate and White House. What do we do when we end up with 6,001 justices?

It would put us in the same ridiculous situation as the government of Hugo Chavez, who added 12 justices to the 20 already seated when Venezuela’s supreme court found against him once too often. He never lost a case thereafter. More recently, Poland’s Law and Order party attempted a “reverse packing” — instead of adding justices, it forced 27 out of the 120 justices into early retirement, replacing them with hand-picked cronies of the government[vi].

Alternatives to Packing

Although I’m not in favor of expanding the Supreme Court, I’m still convinced that critical reforms are needed to ensure that the Court continues to perform its function of an impartial body. Here are some of my preferred suggestions:

Pass a “qui tacit consentire[vii]” law. In the Merrick Garland case, the GOP hid behind some dodgy constitution logic to refuse to consider his nomination. Senator McConnell argued that Judge Garland could not take the bench without Senate approval, which is true; and that the Senate was under no obligation to consider his nomination, which is a great deal less clear. The Constitution states that “The President… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court[viii]” which imposes a duty upon the Senate to consider the nominee and to either consent to the appoint or to reject it. Doing so in a timely manner is implicit in the intent of the Founders, to have an efficiently functioning executive.

A “consentire” law would oblige the Senate to consider any nominee — not just for the Court — within 90 days of their nomination and either approve or reject the nomination. Failure to act would imply tacit consent and allow the nominee to assume the office to which they had been nominated. Not only would this avoid a repetition of the Merrick Garland shenanigans with SCOTUS nominees, it would prevent the Senate from hindering the Executive by refusing to seat any Officers during a Presidency won by the other party. It would be very beneficial to the proper functioning of government far beyond the Supreme Court; Require nominees to fully answer questions relating to their Constitutional views. Recent years have seen the disturbing trend of nominees to the Supreme Court — and other high executive officials — refusing to answer questions posed to them by Congress acting in its legitimate, constitutional oversight and vetting role. While it is reasonable and proper that a nominee would refrain from commenting on how they would view any particular case, which could be later prejudicial to them hearing that case as a Justice, it should be obligatory for them to answer questions on their general interpretation and knowledge of the US Constitution, legal precedent and the role of the Supreme Court. Why else hold confirmation hearings at all? It becomes a purely partisan act if the Senate cannot judge whether the nominee is competent to sit on the court; Create a mechanism for automatic recusals. The Supreme Court is esteemed for providing a relatively neutral third branch to balance the partisan leanings of the other two, but this impartiality is dependent on the irreproachable ethics of the individual justices hearing cases. When those justices have, or appear to have, conflicts of interest they should be obligated to recuse themselves from the case. The potential for bias, conscious or unconscious, is much greater when there is a financial interest involved or when the justice has previously worked on a case that then lands in the Supreme Court. There have been numerous cases where potential conflicts were identified; in most of these the justice in question recused themselves, but not always[ix].

There should be a legal requirement for a Justice to recuse themselves on any case in which three or more of their colleagues cite a potential conflict of interest. There should be a procedure to temporarily assign another judge to fill the vacancy left by the recused judge — any sitting Federal judge or retired Supreme Court justice could be allowed to sit in on that case upon invitation of the President, but without Senate confirmation; Impose term limits. Supreme Court justices currently sit for life or until their retirement from the bench, though the Constitution does not outright state that this is a life-time appointment. “Shall hold their offices during Good Behaviour” has been inferred to mean that there is no other limitation except impeachable conduct on the term of a Justice, but it is fair to say that 20 or 30 years is a very long time to be at the pinnacle of any powerful position.

Numerous proposals exist to combine term limits with a regular rotation of justices that would take the variability out of the appointment process and — hopefully — allow for greater bipartisan cooperation on the sitting of judges. The proposal I like best would have a justice appointed for 18 years; with 9 serving justices, that implies that every 2 years one of them would retire. Even a one-term President would nominate two judges to the court and every session of Congress would approve one of those. This would tend to “reduce the cost” of each judicial appointment since the corresponding stakes would be lower: everyone would know that you’d have another shot at it within two years.

The scheme wouldn’t enter fully into operation for a generation if you grandfather in the currently serving justices: the last four appointed justices are all younger than 60. This fact might make it easier to gain the bipartisan support necessary to pass it. It would also provide these justices with a justification for retiring before failing health obliges them to, so that they don’t feel politically pressured to cling to the bench like barnacles.

The Supreme Court needs to be periodically updated to keep it relevant to an ever-changing society and responsive to the political demands of the times. Packing the court is still a terrible idea. It is not a reform, but a first step in making it irrelevant and despised, which would be harmful to our democracy and system of government.