The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)
A terrible idea is getting new support
No bad idea is ever truly dead. The latest to rise from the crypt is Court-packing: expanding the size of the Supreme Court to pack it with justices who can outvote the current majority. Progressive activist groups — including one, bluntly titled “Pack the Court,” that boasts it will spend millions in 2020 — have formed to push the idea. Prominently on board are Hillary Clinton’s former press secretary and Harvard law professors Laurence Tribe and Mark Tushnet. Democratic presidential contenders noticed. Pete Buttigieg first attracted national attention when he pushed Court-packing, and he has since rolled out a complex plan, to create a 15-member Supreme Court, that NBC News described as “front-and-center of his campaign.” Several rivals followed suit, including Kamala Harris, Elizabeth Warren, Beto O’Rourke, and Kirsten Gillibrand.
Court-packing is a Rubicon we should dread to cross. It last appeared on the national agenda in 1937, the high-water mark of one-party federal government at home and ideological authoritarianism around the globe. Even then, it was roundly rejected by the American body politic. In one swoop, it would irreparably destroy the American tradition of judicial independence of the political branches. In short order, this would end the American experiment of the rule of law and a government of separated and limited powers.
The Supreme Court has always been political in various ways, but at a remove from direct control by politicians. Life tenure, rare vacancies, justices long outlasting the elected terms of the people who appoint them — these things sustain the Court as a separate branch. Allowing the Court to be swamped with new appointees whenever the president wants new precedents is something we recognize as a banana-republic tactic when we see it in other countries. Our own system, strong and durable as it has proven, is not immune. Court-packing would set off an unstoppable dynamic of reciprocal escalations. Even Bernie Sanders has criticized the proposal on the grounds that Republicans would retaliate in kind and the Court would be destroyed in the process. We’ve had cries of wolf before about threats to judicial independence and the rule of law. But to quote Justice Scalia, this wolf comes as a wolf.
A Supreme Court fixed at nine members was a product of American experience rather than constitutional design, but it is no less essential for that. The Constitution creates a Supreme Court and gives its justices life tenure and salary protection to ensure their independence, but it does not say how many justices the Court has. The Constitution likewise does not say that the Court may declare acts of Congress to be unconstitutional, although the Court began doing so in 1803, in Marbury v. Madison. But this was no surprise to the Framers. Alexander Hamilton explained in Federalist No. 78 why a written constitution of limited powers required both judicial review and its exercise by an independent judiciary:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. . . .
. . . Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
Congress in 1789 created a six-member Supreme Court. While the Framers expected an independent Supreme Court to defend the Constitution against Congress, they did not anticipate how quickly the political branches and the Court would divide into ideological factions. Chief Justice John Marshall’s Court took the Federalists’ view of the Constitution; Thomas Jefferson anathematized Marshall, to the point of refusing even to send a lawyer to argue Marbury. The Federalist bench dwindled, as the Jeffersonians controlled the White House after 1800. An ideologically divided Court with an even number of justices becomes dysfunctional. Moreover, there were practical reasons to need more than six justices — justices at the time had to physically “ride the circuit,” traveling the country on horseback to hear cases in the lower courts. A growing nation put more stress on that practice.
A seventh justice was added by the Jeffersonian Congress in 1807 and assigned a circuit of new western states. Jefferson filled the seat. Combined with appointments in 1804 and 1807, the addition aided Jefferson’s campaign against Marshall. But the pragmatic reasons for a new justice, combined with the fact that the Jeffersonians waited until the seventh year of his term, underscore that this was not principally an ideological step.
The next expansion of the Court likewise blended practical and ideological considerations. Andrew Jackson, like Jefferson, clashed with Marshall, the last Federalist. Democrats held a Supreme Court seat open for Jackson at the end of John Quincy Adams’s presidency; Whigs retaliated by blocking Jackson’s nomination to the Court of his attorney general, Roger Taney. When the Democrats retook the Senate and Marshall died in 1835, Jackson made Taney the chief justice. On the last day of Jackson’s term, following the election of his vice president, Martin Van Buren, as his successor, Democrats added two new justices to serve circuits in new western states. Jackson sent up two nominees, one of whom, John Catron, was confirmed that day; Van Buren appointed a judge to fill the other seat. The expansion entrenched rather than altered the Court’s Jacksonian majority.
Taney’s 1857 opinion in Dred Scott v. Sandford invalidated the Missouri Compromise and ruled that black people could never be American citizens — both preposterous political rulings. The Court’s lone Whig justice resigned in protest. Catron joined the opinion, as did the successor to the other 1837 seat. Dred Scott compromised the Court’s independence; President Buchanan had helped Catron lobby another justice to join the decision. Knowing what the Court would decide, Buchanan promised in his inaugural address that the slavery issue would be “speedily and finally settled” by the Court. Instead, Dred Scott deepened the bloodshed and division that led to the Civil War and stained the Court’s reputation for decades.
The final round of changes to the Court’s size, between 1863 and 1869, is inseparably associated with the era that gave us a war that killed 600,000 Americans, a presidential impeachment, and a terrorist campaign against the civil rights of newly freed African Americans. Republicans expanded the Court to ten justices in 1863, partly to create a new circuit court for the west coast but also to erode Taney’s control of the wartime Court. After Catron died, Republicans suspicious of Andrew Johnson’s opposition to Reconstruction shrank the Court to seven to prevent Johnson from appointing any justices. Once President Johnson was replaced by Ulysses S. Grant, the Court was restored to nine. Republican Court-packing marched with the sword, but it was unsuccessful: Lincoln and Grant appointees provided most of the votes to eviscerate civil-rights protections under the 14th Amendment.
We’ve had nine justices ever since. The Court has risen greatly in prestige, professionalism, and independence since 1869, and over that time few have benefited from this more than liberals who looked to the Court for expansive protections of non-economic individual rights. Yet it was Franklin Roosevelt in 1937, fresh from a landslide reelection and with a 74–19 Democratic majority in the Senate, who tried to pack the Court to overcome a conservative majority that had struck down New Deal economic initiatives.
Even FDR couched his plan in non-ideological terms, arguing that the Court was unable to handle its workload and that his concern was about the age of the justices, not ideology. Six justices were then over 70, including those on the Court’s conservative wing. Roosevelt proposed adding a new justice for each justice older than 70. Congressional Democrats and the press, seeing the plan for what it was, were horrified. Gallup found that the voters opposed the Court-packing by almost as large a margin as FDR’s margin of victory months earlier. Georgia Democrat Edward Cox, the chairman of the House Rules Committee, put it starkly:
[The president’s] recommendation that the membership of the Supreme Court be increased from nine to fifteen, thereby enabling him, through willing appointees, to change the meaning of our basic laws and our whole system of government, asks for something which no man in all this world ought to enjoy. The recommendation constitutes the most terrible threat to constitutional government that has arisen in the entire history of the country.
Roosevelt’s plan was dead on arrival, and his coalition began to splinter. Southern Democrats such as Cox began dissenting more on issues, and a vindictive Roosevelt instituted a counterproductive purge of disloyal Democrats in the 1938 midterm elections. In the long run, the Court-packing scheme was unnecessary: Three of the justices were gone by mid 1938, seven by mid 1941. The first of those, 78-year-old conservative Willis Van Devanter, was induced to retire in June 1937 when Congress allowed justices to retire on a pension equal to their salary.
FDR’s stick may have been as effective as Congress’s carrot. Owen Roberts, a Republican appointee, retreated from the conservative justices’ view of economic liberty in a case decided eight weeks after the Court-packing plan was announced, a reversal dubbed the “switch in time that saved nine.” The switch cleared the way for more economic legislation under the New Deal as well as in the states. Historians debate whether Roberts had already committed himself to that switch in internal deliberations before the announcement or was reacting to the 1936 election returns. Roberts was normally not a man to be cowed, and he would later dissent when the Court upheld Japanese internment. But the popular impression was that the Court’s independence could be compromised by the mere threat to its structure. Though Roosevelt failed to pack the Court, his effort had a lasting impact: It would be decades before justices would again impose meaningful limits on the government’s power to restrict economic liberties.
Could today’s Court be compromised by such a threat? Barack Obama was not shy about attacking the legitimacy of the Court’s decisions, in his 2010 State of the Union address famously browbeating the justices to their faces over the Citizens United decision. Obama mounted a public campaign on the constitutionality of Obamacare, ahead of the Court’s 2012 decision on the case. Chief Justice John Roberts, who originally voted in a March 2012 conference to strike down the Obamacare statute, had made his own switch by the time of the decision in June. Historians will no doubt endlessly debate whether his decision was influenced by concern for what Obama might do to the Court’s institutional prestige by contesting its authority to declare his signature legislation unconstitutional.
Court-packing could have direr consequences in today’s environment. The modern Court wields vast authority over emotional social issues: abortion, marriage, race, guns, immigration, crime. The implicit bargain of democracy is that settling disputes over fundamental issues with ballots rather than bullets gives everyone a fair and equal say and the hope of persuading fellow citizens. The power of the courts, in the Hamiltonian view, accentuates rather than undermines that bargain: Judicial review increases the enduring effect of democratically enacted constitutional guarantees of individual rights by requiring that they result from the persuasion of a supermajority, and in return the courts provide the protections of those rights equally to the minority.
Building a Supreme Court majority is, today, the patient work of decades, requiring the ongoing persuasion of voters in presidential and Senate races. Even as the two parties escalate their judicial-nominee power plays in the Senate, the nominations remain periodic affairs dictated by the outcome of elections. To swamp that effort irreversibly after a single election is to tell voters that, after all that investment of time, the democratic process was a mirage and some outcomes will simply not be tolerated by the system. After Dred Scott, despairing radical abolitionists such as John Brown decided to forsake the ballot box and take matters into their own hands. Southern fear, stoked by Brown, led to secession rather than acceptance of the outcome of the 1860 election. When ballots were no longer respected, bullets ruled.
We have, as Ben Franklin noted, a republic, if we can keep it. Few things would push this nation more swiftly down the path toward the dissolution of two centuries of stable self-government than Court-packing. Nothing else on the policy menu of either party in 2020 is remotely as alarming.
This article appears as “The Court-Packing Peril” in the June 24, 2019, print edition of National Review.