Court Packing Won't Happen, but Calling Out the Court as Partisan Can Work Just as Well

As Pete Buttigieg, Elizabeth Warren, and Kamala Harris mull packing the Supreme Court, they'd be wise to turn to the lessons of FDR's failure to do so.
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United States Supreme Court (front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett Kavanaugh.

United States Supreme Court (front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett Kavanaugh.

More than any other president in recent history, Donald Trump is content to let his cabinet seats sit empty. At one point this year, almost 40 percent of key leadership positions that require Senate confirmation were unfilled, according to the Partnership for Public Service, a non-profit focused on good governance.

But while Trump is content with major staffing vacancies, he's been filling the federal judiciary at record speed, appointing over 100 judges in his first term alone. In May, Trump appointed his 38th circuit judge, doubling the 19 circuit judges Barack Obama had appointed at the same mile marker of his presidency. He's also, unforgettably, enshrined a powerful conservative majority in the Supreme Court with the appointment of Brett Kavanaugh and Neil Gorsuch. "They are all conservatives who are committed to the principles enshrined in the constitution of the United States!" said Vice President Mike Pence of the recent appointments.

While the judiciary has long been considered a realm unsullied by partisan politics, Pence's statement, in conjunction with Senate Majority Leader Mitch McConnell's treatment of Merrick Garland, illustrate how naive that assumption has become.

With a federal judiciary now chock full of conservative ideologues with lifetime appointments, it's easy to see why some of the Democratic presidential candidates are warming to the notion of court packing—that is, adding extra appointments to the Supreme Court to help balance out what could easily be a 6–3 conservative majority by the time the 2020 presidential election has run its course, if another liberal justice were to vacate their seat. That conservative majority could prove hostile to any or all of the major policy proposals of a Democratic president—single-payer health care, the Green New Deal, or even more modest ambitions, like preserving Roe v. Wade.

"We are on the verge of a crisis of confidence in the Supreme Court," Kamala Harris told Politico in March. "We have to take this challenge head on, and everything is on the table to do that."

That sentiment was echoed by Elizabeth Warren, who has also suggested court packing as a possible solution. "It's not just about expansion, it's about depoliticizing the Supreme Court," she suggested.

Pete Buttigieg, the mayor of South Bend, Indiana, has taken it one step farther, laying out a plan to restructure the Supreme Court, a striking move for a major party candidate. His so-called Balanced Bench plan would expand the Supreme Court to 15 justices. Five of those justices would be "affiliated with" the Republican Party, while another five justices would be affiliated with the Democratic Party. The remaining five justices would be selected and confirmed not by the president and the Senate, but by the unanimous agreement of the other 10 justices on the court. Those wild-card judges would serve non-renewable one-year terms after being chosen two years in advance, to avoid drafting judges for specific cases.

Though that proposal may seem like it would balance the scales, it's been pilloried by critics for being overly complex and needlessly technocratic. What's more, though it proposes to extricate the courts from the highly partisan clutches of the McConnell-led Senate, the proposal could introduce some gridlock: If the sitting justices cannot agree on who to appoint, the (already-backlogged) court could simply refuse to hear any cases for the year.

While Democrats have finally caught onto the fact that Republicans have been enjoying a many-year head start on reshaping the courts, the problem of partisanship in the courts goes back to the founding of the modern court itself. In the early years of the republic, the Supreme Court was a largely powerless institution. But when the Democratic-Republican Party of Thomas Jefferson swept the Federalists out of power in 1801, then-President John Adams and a lame duck Federalist Senate stocked the courts with allies, including outgoing Secretary of State John Marshall, who went on to be known as the greatest Supreme Court justice of all time. That decision allowed the Federalists to maintain agenda-setting control over the political process despite their minority position.

Indeed, Democrats would be wise to turn not to innovation but to history for possible solutions to an obdurate, conservative court. When Franklin D. Roosevelt rode into power in 1933 on the back of the original New Deal, he too encountered a partisan judiciary that endangered his entire spate of ambitious policy proposals. The court struck down numerous New Deal programs as unconstitutional, as well as a famous New York state minimum wage law for women and children workers.

So, in 1937, FDR introduced the Judicial Procedures Reform Bill, the most famous and most recent court packing campaign in American history. The bill proposed adding a new justice each time a justice reached age 70 and failed to retire. But the bill got held up in the Senate for months, and later died there.

And yet, FDR's campaign was ultimately successful: Both the Social Security Act and the National Labor Relations Act were upheld, despite expectations to the contrary. The threat of court packing alone forced a reactionary court to capitulate to the New Deal agenda, with Justice Owen Roberts eschewing his conservative positions in favor of more liberal ones. As pointed out by New York University Law School professor Barry Friedman, Roosevelt's public pressure campaign had already caused the court to signal that it would no longer block major economic policies by the spring of 1937. The act of challenging the Supreme Court and identifying its political nature allowed for a resetting of the body's role. Raising the threat of political consequence proved more essential than any legislative workaround.

The threat of progressive forces doing battle with the courts has worked on a smaller scale in recent history. As journalist Joan Biskupic writes in her John Roberts biography The Chief, Roberts intended to join his four conservative colleagues in voting to strike down the Affordable Care Act in 2012. But his reluctance to showcase the court as a baldly partisan institution, and the risk of popular backlash, caused him to avoid making such a decisive intervention into a hot-button issue as health care.

The conservative takeover of the courts has become so widespread that it is unlikely one quick fix could solve what looks to be a generational situation. Expecting any far-reaching legislative reform of the judiciary to be passed by a Democratic president would be Pollyannaish at best, especially with the Senate likely to remain in Republican control. If court packing proved politically insurmountable in the 1930s, there's no reason to think it would be feasible in the much more fractious politics of our current day.

But if a Green New Deal era is going to take off, Democratic leadership would be wise to borrow from the lessons of the original New Deal era, identifying the partisan nature of the courts and challenging it publicly and repeatedly head on.

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