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As Republicans prepare to confirm a successor to Ruth Bader Ginsburg, Democrats need to think through a strategy for what they ought to frame as “rebalancing” the Supreme Court. If Mitch McConnell succeeds in confirming Trump’s nominee, the Court will have a 6-3 right-wing majority, likely to strike down both historic liberal achievements as well as new initiatives for years to come. The chances of dealing with climate change, voting rights, economic inequality, and many other problems will be virtually nil.
Either Democrats can surrender the future, or they can take seriously the idea of expanding the Court, which Congress can do through ordinary legislation. But whenever that idea has come up, a chorus of objections has arisen:
Didn’t Franklin Roosevelt fail when he tried to “pack” the Court in 1937?
Wouldn’t it violate constitutional norms?
Won’t Republicans just reciprocate when they have the opportunity?
Democrats’ best chance of overcoming a judicial blockade and building support for a long-term resolution of judicial politics is to pass immediate legislation to rebalance the Court, while simultaneously advancing a constitutional amendment to set fixed terms for Court appointments. Though the amendment would have no chance of passage now, it would give Democrats the high ground in the short run, and it might eventually win general public and bipartisan support.
When Roosevelt proposed adding six justices to the Court in 1937, he hadn’t laid down the foundation for that measure in his re-election campaign the year before. But the proposal wasn’t futile. Although Congress didn’t approve the expansion, the Court got the message: One justice switched positions on New Deal legislation, and Roosevelt soon had seats to fill with retirements.
By refusing even to vote on President Obama’s nomination of Merrick Garland in March 2016 and now trying to replace Ginsburg at a time so much closer to an election, Republicans have given Democrats the kind of legitimate rationale for expanding the Court that Roosevelt never had. Moreover, Democrats can lay down the predicate for action well in advance of its consideration by Congress.
In fact, there is historic precedent for altering the number of justices. Republicans did it three times when they had control of Congress between 1863 and 1869. First, they added a tenth seat to give Abraham Lincoln an extra appointment; then they cut the size of the Court to seven to deny Andrew Johnson any appointments; and, finally, they re-enlarged it to nine to allow Ulysses Grant to fill two seats.
In 2017, after Republicans blocked Merrick Garland, citing their conveniently invented and now-abandoned rule against confirming justices in a president’s last year, Harvard Law professor Mark Tushnet had an apt response to those who said that adding two seats to the Court would violate constitutional norms. Democrats, he said, would be establishing a new norm: “You can’t steal a Supreme Court seat and expect to get away with [it].”
The logic of a two-seat expansion at that time was that with Garland on the Court, Democratic appointees would have had a 5-4 majority. To return the majority to them therefore required not one, but two additional justices. Since Republicans will have compounded the problem by replacing Ginsburg, Democrats should now seek to enlarge the Court by four seats.
An immediate expansion of the Court, however, ought to be combined with support for constitutionally entrenched term limits on Court appointments. What I have in mind here is a constitutional amendment proposed by the group Fix the Court, which would set Supreme Court terms at 18 years and give presidents two nominations in a four-year term. The amendment could include a schedule for mandatory retirement of sitting justices, timed to coincide with new 18-year appointments and, after a transitional period, to bring the Court back to nine members.
Nothing would likely come of the amendment for some time, and Republicans might try to enlarge the Court when they have the opportunity. There will be no way to stop round after round of judicial tit for tat without a constitutional amendment. By supporting the term-limits amendment now, Democrats would have set out a framework for an eventual compromise on the Court’s structure, and Republicans might eventually come around to accepting it.
That’s most likely to happen only when there is frank recognition of a host of problems with the American constitutional system—such as the Electoral College. After the Trump presidency, we should have no illusions about how well our constitutional system works. We need a new era of constitutional reconstruction, and a new structure for the Supreme Court should be part of it.
