CommentaryEverything old is new again, and court-packing is no exception. In 1937, faced with a conservative Supreme Court that consistently invalidated his New Deal legislation, President Roosevelt announced a plan to increase the size of the court and add justices who would rule in his favor. It was a bridge too far. While Roosevelt’s plan may have flipped the Supreme Court by encouraging Justice Roberts to vote in favor of New Deal legislation, its failure in Congress was a humiliating defeat that destroyed much of Roosevelt’s political capital.
Today, Democrats once again face a conservative Supreme Court, determined to invalidate progressive legislation and reverse progressive precedents. Many prominent Democrats have revived the idea of court-packing, including several presidential candidates. Senator Warren has suggested adding justices to the Supreme Court, and Senators Gillibrand and Harris are also willing to consider court-packing. As Warren explained, “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” which could restore the Court’s legitimacy.
We disagree. Court-packing cannot solve our constitutional crisis, because it simply reinforces our fundamentally broken constitutional order. It is impossible to depoliticize the Supreme Court, because the Supreme Court is fundamentally a political institution. When people decry the politicization of the Supreme Court, they are really just upset that its decisions don’t reflect their political preferences. Democrats complain about the politicization of the Supreme Court only because it is currently dominated by Republicans, just like Republicans complained when it was dominated by Democrats.
Indeed, Republicans dominate the Supreme Court because of politics. For better or worse, Republican presidents have occupied the White House for 31 of the past 50 years. Unsurprisingly, they have nominated conservative judges and justices likely to make conservative rulings. And they have increasingly focused on populating the federal judiciary. President Trump nominated not only two of the current Supreme Court justices, but also a quarter of sitting circuit court judges.
As a consequence, Republicans have won innumerable political victories in the Supreme Court and in the lower courts. In Heller v. DC, the Court dramatically expanded the scope of the Second Amendment right to bear arms, in Citizens United v. FEC it eliminated most regulations on political campaign spending, and in ruling after ruling courts have blocked antitrust enforcement, among many other things.
Of course, Democrats have scored some political victories as well. Most notably, in Obergefell v. Hodges the Supreme Court held that the Constitution protects same-sex marriage. But for every Obergefell there are countless conservative decisions weakening the Voting Rights Act, undermining labor unions, and gutting environmental regulations. As Mr. Dooley famously observed, the Supreme Court generally follows the election returns.
As a consequence, Democrats are in an ideological pickle. Decades of cultivating the power of the Supreme Court, when they controlled it, created a political institution of immense power, which they no longer control. As Samuel Moyn observed, “Because of the cult of the higher judiciary, Democrats find themselves facing an all-powerful institution set to impose its will on a majority of Americans who would decide things differently.” But what should they do now?
The court-packing plans on offer do nothing to mitigate the fundamental problem, and may even make it worse. Packing the Supreme Court with ideologically appealing justices only doubles-down on the cult of the judiciary and perpetuates the rule of what Sanford Levinson called “Our Undemocratic Constitution.” If we believe in democratic legitimacy, we should rely on democratic institutions to make political decisions, not jockey to fill an undemocratic institution like the Supreme Court with puppet judges. Important decisions about our public policy should come from the ballot box, not judicial fiat.
If we want to fix the Supreme Court, rather than simply score political points, we have to focus on the political institution it actually is, rather than the imaginary apolitical institution we pretend it can be. Hans Jonas described Gnosticism as the “acute Hellenization of Christianity.” One might describe the ideological history of the United States as the acute legalization of constitutionalism. We have come to fetishize the Constitution as the source of fundamental law and the Supreme Court as its ultimate exegete. But a court cannot make a constitutional decision, only the people can.
Ironically, Mayor Buttigieg is the only Democratic presidential candidate to propose an interesting plan for reforming the Supreme Court. His “Balanced Bench” plan would expand the Supreme Court to 15 justices, consisting of 5 Democrats, 5 Republicans, and 5 justices selected by the unanimous agreement of the other 10 justices. According to Buttigieg, his plan would depoliticize the Supreme Court by introducing checks and balances.
Unsurprisingly, Buttigieg’s plan was met with well-deserved ridicule. It is both politically unrealistic and possibly unconstitutional, whatever that means. But it is still interesting, not because it could be realized, but because of what it says about the institutional role of the Supreme Court, and what it should be. As it stands, the Supreme Court enjoys public approval ratings far exceeding any other political branch. This is surely a function of a mistaken belief that the Supreme Court is an institution above politics. Transforming the Supreme Court into an explicitly political institution would destroy its undeserved credibility, probably for the better.
Notably, Buttigieg’s plan is based on one of the proposals advanced by law professors Daniel Epps and Ganesh Sitaraman in their forthcoming Yale Law Journal article “How to Save the Supreme Court.” Their thought experiments are intended to encourage us to think about the ideological role of the Supreme Court, and how we can square it with our political goals. Perhaps the only way to save the Supreme Court is by destroying it? Only when the Court’s reputation declines to single-digit approval ratings, like every other political branch, will we be able to wrestle public policy away from the tyranny of gavels.
After slaying Goliath in judges’ robes, we should also think critically about the roots of this crisis. Why have we failed to produce a political model that doesn’t include turns at trying to whack the other side with the full force of the state power after every election? Why do we tolerate federalism, a Senate that represents a shrinking minority of the American population, the electoral college, or gerrymandering? Perhaps the organizational principle of our politics is flawed. Our acutely legalized and historically unmoored Constitution appears to be buckling under the strain of current events.
That problem can’t be solved with court packing.
Lucille E. Nguyen is a college student, a research assistant at the University of Kentucky College of Law, and a host of Ipse Dixit, a podcast on legal scholarship. Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law and another host of Ipse Dixit.
Suggested citation: Lucille E. Nguyen & Brian L. Frye, Court-Packing & its Discontents, JURIST – Academic Commentary, November 17, 2019, https://www.jurist.org/commentary/2019/11/nguyen-frye-court-packing/
This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org
