President Trump reportedly has big plans for the Supreme Court seat of Justice Ruth Bader Ginsburg.
A report from Axios suggests Trump is "saving" appellate court justice Amy Coney Barrett, an anti-choice hardliner, for the 86-year-old Ginsburg's seat, should it soon be vacated. The mere possibility of Ginsburg, an almost mythical celebrity on the left, being replaced by another hard-right ideologue will only deepen the debate in Democratic circles about the idea of adding seats to the Supreme Court, better known as court packing. This proposal was once fringe, but is becoming increasingly commonplace, and that's a good thing.
The number of justices on the Supreme Court, like almost everything else about the judiciary, is not fixed by the Constitution but rather by simple statute. It could be increased from nine to 11, or 13, or more, and Democrats could fill those new seats with liberal appointees. It is long past time leading Democrats start wielding this idea as a threat of payback and radical escalation against the GOP. Not only might court packing be the only way to convince Republicans to compromise, but it is also an acceptable fallback position should the GOP insist on maintaining its ill-gotten grip on the federal court system for another decade.
Until recently, many elected Democrats have been reluctant to publicly contemplate the idea of packing the court. But that may be changing as Republicans resort to ruthless procedural aggressiveness to mold the court to their liking. Furthermore, as the Supreme Court becomes increasingly radicalized while working in tandem with the Trump-stuffed lower levels of the federal judiciary, Democratic presidential aspirants seem to be warming to the idea of court packing to prevent a conservative Supreme Court from gutting the liberal agenda item by item.
The elite response to this has not been positive. The biggest concern is the specter of retaliatory court enlargement by future Republicans. As The New Republic's Matt Ford wrote recently, "With the court-packing taboo broken, there would be nothing to stop the GOP from expanding it again whenever they next take both houses of Congress and the presidency." Such a process could, it is feared, lead to the erosion of public support for and trust in the courts.
But public trust in the courts is already crumbling, mostly because the way Republicans have staged their judicial takeover — by aggressively holding up President Obama's lower-court appointments, blocking his nominee Merrick Garland, and then watching the man who lost the 2016 popular vote appoint a series of fanatics — is so egregiously in violation of the Constitution's spirit as to call the whole arrangement into question. Indeed, nothing could be more damaging to the long-term legitimacy of the federal courts than having the next Democratic administration hampered at every turn by an activist court majority that clearly does not represent the majority of Americans.
Many who object both to recent Republican behavior and court packing float an alternative idea: term limits. One popular (and smart) proposal, from a group called Fix the Court, would cap service on the Supreme Court at 18 years and grant each president the right to appoint a justice in the first and third year of each term. And while this is clearly the better way to end the court wars, it also wouldn't feel much different than tit-for-tat escalation. If the presidency changes hands as frequently as it has over the past generation, partisan control of the court might flip every four or eight years, just as it would under the theoretical runaway retaliation scenario. In fact, the court would probably change hands more frequently under term limits, since escalation requires the aggrieved party to seize unified partisan control of the federal government in order to fully respond in kind.
Term limits might, if carefully worded, be constitutional, and could in theory be implemented with an act of Congress. But any such law would immediately get tied up in litigation. Many scholars believe an amendment would be necessary. When presented with this point, most critics of packing the court are silent, because they don't have a good plan of action. Instead, they have a series of hoped-for possibilities, some more remote than others.
For example, they hope that maybe, just maybe, the next Republican president to face a Democratic Senate will be prevented from filling a SCOTUS seat, and the Garland affront will be avenged. But when is that likely to happen? The Senate is structurally biased against the contemporary Democratic coalition, and there is no guarantee a seat would open up anyway. The possibility of Trump winning re-election but losing the Senate is comically unlikely.
Or perhaps, if Democrats are able to block a Republican appointment in the future, both parties will consider the issue settled and return to the halcyon days of near-unanimous confirmations in the Senate. But that is definitely not the lesson to be drawn from recent history, since Mitch McConnell's Garland gambit was likely inspired by his still-curdling resentment at watching Ronald Reagan's 1987 nomination of Robert Bork get torpedoed by Democrats. Memories in Washington, D.C., are long.
Or maybe Democrats will seize full control of the government next year, and Justice Clarence Thomas or Justice Samuel Alito will step aside or be forced by health concerns into retirement. In that case, Democrats will be able to capture the critical 5th seat, and court packing becomes redundant anyway. But both Thomas and Alito seem quite healthy, they are unlikely to voluntarily retire while a Democrat is president, and it is still possible that one or both will step aside during Trump's first term to ensure that their seats remain in conservative hands more or less forever. In fact, no Democratic president has been able to replace a member of the conservative court bloc since John F. Kennedy's presidency.
Apart from these unlikely scenarios, or a total capitulation by Democrats, a constitutional amendment is the only way out of this mess. But the Constitution has not been meaningfully revised in decades, and any amendment perceived to benefit one party over the other is DOA.
Imagine that the dream Democratic scenario unfolds next year: Democrats hold the House, send Trump packing, and net at least three seats in the Senate. Imagine also that Justices Ginsburg and Stephen Breyer remain alive and on the Court for another 22 months. President Buttigieg or Sanders or Harris then comes calling to Republicans in Congress and the states with amendment hat in hand: Won't you please update the U.S. Constitution so that we can seize immediate control of the Supreme Court? The idea that Republicans would willingly go along with this idea, in the absence of some other kind of pressure, is farcical. If you think "gentle persuasion" is the answer here, you have not been paying close enough attention to the behavior of the Republican Party in the 21st century.
Democrats need to start issuing threats to make their counterparts understand there will be no more unilateral surrenders in the court wars. If the GOP is determined to press its advantage to the very boundaries of constitutionality and decency, Democrats must be willing to entertain similarly transgressive, yet perfectly legal, maneuvers.
How would this work in practice? The next unified Democratic Congress should, as one of its first orders of business, pass a law enlarging the Supreme Court to whatever number is required to achieve the first liberal majority since the 1970s. The president would then, instead of signing the law immediately, address the nation with the following demands: supermajorities in Congress will pass, and three-quarters of the states will ratify, at the earliest possible moment, an amendment ending lifetime tenure on the Supreme Court and limiting the Senate's advice and consent powers for these nominations. If the president wanted to play extra ruthless hardball, he or she could demand that the illegitimate Justice Gorsuch resign as part of any broader settlement.
That would focus the Republican mind, would it not? The GOP would be faced with a stark choice: They could end the court wars forever and preserve the judiciary's legitimacy by passing a fair-minded compromise that has extensive public support, with the possibility of recapturing the Supreme Court in 2025 easily within reach, or they could watch Democrats use legal, constitutional power to avenge Merrick Garland and ensure that the progressive agenda doesn't end up vaporized by a conservative court majority appointed almost entirely by presidents who first won office with a popular vote minority.
Sure, it is unlikely that Republicans would crack and get on board with an amendment. But it's not outside of the realm of possibility. The court packing threat must be credible if there is to be any chance of GOP cooperation. And if Republicans dig in their heels and say no to an amendment, Democrats should pack the courts the next day, and they shouldn't lose any sleep over it.