Frustrated by the conservative swing of the Supreme Court that is likely to continue for some time to come, several Democratic candidates for President, Democrats on Capitol Hill, and Democratic-leaning pundits have spoken out recently in favor of various ways to reform the Supreme Court. Many of these ideas have included proposals to increase the size of Court, something that Congress could do without amending the Constitution, as well as other ideas.
Associate Justice Ruth Bader Ginsburg was asked about these proposals recently, and suffice it to say that she was not impressed:
Justice Ruth Bader Ginsburg said this week that she opposes proposals to expand the Supreme Court beyond its current nine members, a step that some Democratic presidential candidates have pushed as a remedy for what they see as the court’s lurch to the right under President Donald Trump and the Republican-controlled Senate.
“Nine seems to be a good number. It’s been that way for a long time,” Ginsburg told NPR’s Nina Totenberg.
“If anything, [it] would make the court look partisan,” she said of the court-packing plans advocated by some Democrats. “It would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
Ginsburg also said she was not concerned by calls for term limits for justices, citing the political difficulty of amending the Constitution, which enshrines lifetime appointments for federal judges. She said Constitutional protections for the federal judiciary are so strong that “the safeguards for judicial independence in this country, I think, are as great or greater than any place else in the world.”
Several 2020 White House hopefuls have expressed interest in ideas to widen the court’s bench, fueled by liberal resentment over Senate Majority Leader Mitch McConnell’s refusal to hold confirmation hearings for Judge Merrick Garland, who was nominated to the high court in the final year of Barack Obama’s presidency.
The Volokh Conspiracy‘s Jonathan Adler directs us to these comments about the proposal from his co-blogger Ilya Somin:
I fully recognize that many Democrats regard court-packing as justified retaliation for the GOP’s “theft” of the Supreme Court seat that went to Neil Gorsuch as a result of the Republican-controlled Senate’s refusal to hold hearings and vote on Barack Obama nominee Merrick Garland. Republicans, in turn, argue that their treatment of Garland was justified by past Democratic misdeeds in the judicial nomination process (including refusal to hold hearings for a number of prominent GOP circuit court nominees), and that the Democrats themselves had signaled they would refuse to consider a GOP nominee in circumstances similar to those surrounding the Garland appointment. The truth is that, for a long time, both parties have shamelessly violated a variety of norms surrounding judicial nominations almost any time it seemed like they might gain an advantage to doing so. And both are equally shameless in shifting back and forth on procedural issues whenever the political winds dictate. The latest example is the contrast between GOP Senate leader Mitch NcConnell’s insistence, in 2016, that the then-open Supreme Court seat should not be filled until after the November election, and his current claims that the present vacancy must be filled quickly, and certainly before the GOP might potentially lose its Senate majority in this fall’s election.
But whatever we might think about the history of these shenanigans, court-packing is qualitatively different from any of them. Holding up nominees (as the GOP did with Garland), filibustering them (as the Democrats did with several Bush nominees, and as many – including Barack Obama – tried to do with Justice Samuel Alito), or “slow walking” them through the nomination process (many examples from both parties), are all potentially problematic. But all still leave the judiciary intact as a serious check on the power of the other branches of government. Court-packing, by contrast, would not. Once the norm against it is broken, both parties will resort to it whenever they have simultaneous control over Congress and the presidency, thereby foreclosing any significant judicial review of their policies.
When it was proposed last year, the Calabresi-Hirj plan sank like a stone. Even many on the right rejected it. That reaction showed the continued vitality of the norm against court-packing. But conservatives are likely to rethink their position if they believe liberal Democrats will pack the courts the first time they get a chance. And they will almost certainly do so (and retaliate in kind) if the Democrats actually do resort to court-packing the next time they get the chance.
Some liberal Democrats might still conclude that it’s better to blow up judicial review than to leave that power to be exercised by a Court with a conservative majority. This would be an understandable, but shortsighted reaction. For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive (sometimes backed by Congress) is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president is a populist demagogue with authoritarian impulses. And, as the current occupant of the White House demonstrates, the safeguards against such people getting power are not nearly as strong as we might have thought before 2016. As specialists in comparative politics emphasize, it is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.
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Court-packing might still be attractive to people who believe that it’s more important to eliminate “bad” judicial review as an obstacle to beneficial policies, than to preserve the “good” kind as an obstacle to oppressive ones. That theory has advocates on both right and left. This longstanding issue cannot be fully settled in a blog post. But I believe the history of American government – and government elsewhere – shows we have more to fear from state oppression than from excessive exercise of judicial review. Given widespread voter ignorance and prejudice, majority public opinion – and the politicians it elects – often cannot be trusted to avoid deeply oppressive and unjust policies. Judicial review cannot prevent all such wrongs, but it has historically done a good deal to at least alleviate them.
Court-packing was a terrible idea when FDR advocated it in 1937 and when some conservatives pushed it last year. It remains a terrible idea today.
Ginsburg and Somin are, of course, both correct in their criticism of the ideas that have been advanced to pack the Court. First of all, as Ginsburg notes, and as I have noted myself on several occasions, while the Constitution leaves it to Congress to determine who big the Supreme Court should be, nine Justices seems to be an ideal number that allows the Court to function at its best.
One reason to be skeptical of these court-packing proposals is due to the fact that it would inevitably lead to a Supreme Court of more than nine members, potentially substantially more than nine depending on the circumstances. While it’s true that nine Justices is not holy writ, the fact that it has been the norm for most of the time that SCOTUS has existed is a strong indication either of the alternatives — shrinking the size of the Court or increasing it — could be problematic.
Shrinking the membership of the Court, of course, would mean that there would be far fewer voices to consider the issues that come before the Court. In this regard, it’s worth noting that, for the most part, the Supreme Courts on the state level have mimicked the custom we’ve had at the Federal level with a membership of nine justices, although there are some states that have fewer than that. (I am unaware of any State Supreme Court that has more than nine members.)
Another problem with the proposal to increase the size of the Court is that it is unlikely that it would be a limited matter. Democrats no doubt would love to increase the size of a court that looks as though it will be tilting to the right for the next several decades, so if they get control of Congress they would want to increase the size of the court to try to dilute the power of the conservatives. Republicans would no doubt want to do the same when they regain control of Congress and the White House. And so on, and so on. Where does it stop? How many SCOTUS Justices would be “enough?” 11? 13? 15? Obviously, it would have to be an odd number so as to avoid the problems that ensure in the case of an evenly divided court. At some point, though, I think the Court could get so large that it would have an impact on the effectiveness of body and the ability of the Court to do its job under Article III.
A very good example of the problems a much larger Court would create can be seen by looking at the Ninth Circuit Court of Appeals, the nation’s largest and busiest Court of Appeals. At present, there are 28 active Judges on the Court not counting those who have taken Senior Circuit Judge status. If you add in the 3 seats that are currently vacant, that makes for a membership of 31 Judges.
To a large degree, the 9th Circuit needs to be this big to deal with the sheer volume of appeals that come through its doors every year. One consequence of this, though, is that the court long ago ended the practice of having all of the active Judges participate when the Court sits en banc. Instead, if and when en banc review of a panel decision is granted it is assigned to an en banc panel consisting of 11 of the active Judges. This is not really what en banc review is supposed to be, and would be an impractical way for the Supreme Court to operate. This is one of the reasons why there have been many arguments made over the years to break up the 9th Circuit and create a new 12th Circuit Court of Appeals. So far, though, the various plans for how that would happen have been so far apart that Congress has not addressed the issue.
Looking around the world, the differences, and similarities, in how other nations staff their respective highest court is of interest:
- The United Kingdom has a Supreme Court made up of 12 members;
- Canada’s Supreme Court has 9 members;
- Australia’s High Court, which appears to be their equivalent to SCOTUS, has 7 members;
- New Zealand’s Supreme Court has 6 members;
- Ireland’s Supreme Court has 8 members;
- South Africa’s Supreme Court of Appeal has 22 members, but most cases are heard by panels made up of 5 Justices;
- Israel’s Supreme Court has 15 members.
That’s an average composition among nation’s that model their legal systems after English common law traditions at roughly 11 Justices. This puts the United States roughly in line with the rest of the world.
The final reason to oppose court-packing is the one that Somin mentions, namely the prospect that such a scheme would be likely to enhance the power of the state and authoritarian rulers like Trump. Indeed, as Somin documents, court-packing is a typical scheme engaged in by such rulers to assert control over the Judiciary. If the past two and a half years have shown anything, it is has shown us that the courts are still an effective check on abuses of power by the Executive Branch. Even Judges appointed by President Trump have issued rulings against Administration action because they are in clear violation of the law. A Judiciary packed with blatantly political nominees is unlikely to continue to serve that function, thus undermining the final restraint holding back authoritarian power.
Our current judicial system is admittedly not perfect, but it has served us well. We should listen to Justice Ginsburg and refrain from fooling with something that has worked for more than 200 years now.
