The Top Five Reasons to Pack the Supreme Court

This week in North Philly Notes, Stephen Feldman, author of Pack the Court! explains why Democrats should expand the number of Supreme Court justices.

Democrats should pack the Supreme Court if and when they have the opportunity. Yet, many object to court packing, arguing that it would destroy the legitimacy of the Supreme Court as a judicial institution. According to this view, the Court’s legitimacy is based on a law-politics dichotomy: The idea that law and politics must remain separate and independent. The justices must decide cases by neutrally applying the rule of law. If politics infect the Court and its decision making, then Court decisions are tainted.

Although many Republicans and Democrats share this view of the Court, it is seriously mistaken. Here, then, are five reasons to support court packing.

1. History of the Court’s Size. History reveals that Congress has repeatedly changed the number of justices based partly on political grounds; seven times by express statute. The Court has fluctuated between a minimum of six and a maximum of ten seats. Nothing in the Constitution precludes Congress from changing the Court’s size. From 1861 to 1869, for instance, politically driven Congresses changed the number of authorized Court seats from nine to ten to seven to nine. Most recently, for more than a year from February 2016 to April 2017, Mitch McConnell and a Republican-controlled Senate Judiciary Committee de facto reduced the Court to eight justices when they refused to open confirmation hearings for Democratic President Barack Obama’s nominee Merrick Garland.

2. History of the Appointment and Confirmation Processes. Despite the usual insistence that politics must be irrelevant to the Court’s business, presidents choose and congresses typically confirm (or reject) Supreme Court nominees based heavily on political considerations. Contrary to conservative claims that Democrats politicized and ruined the confirmation process in 1987, when they refused to confirm Robert Bork, presidents starting with George Washington have seen Congress shoot down their nominees for political reasons. Throughout American history, nearly one-fourth of the Supreme Court nominees have failed.

3. Analytical Argument Against the Law-Politics Dichotomy—Understanding the Law-Politics Dynamic. The law-politics dichotomy is a myth, propagated over the years for professional and political reasons. Contrary to this myth, law and politics dynamically interact in Supreme Court decision making. Law is neither the handmaiden of politics nor mere window-dressing, hiding political machinations. But law should never be understood as being separate and independent from politics, at least in Supreme Court decision making. In most cases, the justices sincerely interpret the relevant legal texts—the Constitution, statutes, executive orders, and so on—but interpretation is never mechanical. The justices’ political ideologies always influence their textual interpretations, so law and politics always intertwine in the adjudicative process. Politics, in other words, shapes the justices’ interpretive conclusions even though the justices focus on the law. Unsurprisingly, then, the justices’ legal interpretations and judicial conclusions ordinarily coincide with their respective political preferences.

If the Court decides cases pursuant to a law-politics dynamic—and the law-politics dichotomy is a myth—then the primary criticism of court-packing vanishes. If Supreme Court decision making is not and never has been apolitical, then court-packing cannot undermine the legitimacy of the Supreme Court as an apolitical institution. Court-packing cannot infect the Court with politics because the law-politics dynamic is already (and always) inherent in legal interpretation and Supreme Court adjudication.

4. Politics of the Roberts Court. Despite claiming to follow the rule of law, the Roberts Court has consistently decided cases in accord with a conservative political agenda. Corporations and the wealthy usually win; the poor might not even get into court. Employers win; unions and employees lose. Whites win; people of color lose. Men win; women lose. Christians win; non-Christians lose. Republicans with entrenched political power win; Democratic voters lose. Gun owners win; everybody else loses.

If the Democrats were to enact progressive legislation—for example, statutes restoring and fortifying voting rights, creating universal health care, strengthening environmental protections and fighting climate change, restricting gun ownership, and protecting documented and undocumented immigrants—the Roberts Court, with its current personnel, would likely construct constitutional barriers to weaken or invalidate such laws.

5. Public Support for the Court. Would court packing cause many people to lose faith in the Court’s authority? The question here is not how the Court actually decides cases, but rather how the public perceives the Court. Nevertheless, political science studies suggest that the Democrats should go ahead and pack the Court. The public’s diffuse support for the Court is resilient, sustained by “a reservoir of favorable attitudes or good will.” Even when the Court issues a decision contrary to an individual’s personal views, that individual is unlikely to lose faith in the Court. If anything, when news of Court activities draws an individual’s attention, then that attention (to the Court) will likely reinforce the individual’s positive views of the institution. In a sense, the more one knows about the Court, the more one is likely to find its decisions legitimate (the opposite is true for Congress). In fact, many Americans understand that Supreme Court decision making entails a combination of law and politics—the law-politics dynamic. The people’s support for and loyalty to the Court does not depend on the myth of the law-politics dichotomy. To the extent that individual views of the Court’s legitimacy might change in response to a court-packing plan, partisan shifts would likely cancel each other out.

In conclusion, the potential for court packing is baked into the checks and balances of our tripartite national government. As history demonstrates, the Constitution grants Congress and the president control over the size of the Court as well as the nomination and confirmation processes. Therefore, at any particular time, politics determines whether court packing is possible and appropriate. When the time is right, as it is today, then a court-packing proposal would likely reinforce rather than weaken the Court’s legitimacy.

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