The 2016 Presidential Election was crucial for the balance of the US Supreme Court. The highest judiciary body in the country had one vacant seat, emptied by the death of conservative Justice Anthony Scalia. President Obama nominated Judge Merrick Garland, but the Republican-controlled Senate refused to proceed with the confirmation vote. At the same time, Justice Kennedy had signaled his intention to retire, and Justice Ginsburg's health was rapidly deteriorating. The next President could appoint as many as three Justices to the Court.
Following his upset victory, businessman Donald J. Trump was sworn in as President of the United States. One vacancy after another, he accomplished what no other President had done before, appointing as many as three Justices in one term. Neil Gorsuch was nominated and confirmed in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020. The balance of the SCOTUS flipped from 4-4 to 6-3, and so did the dominant opinion in the Court, now ideologically conservative.
The Supreme Court has been at the center of public debate in the past few years as it overturned critical pieces of Democratic legislation like the Biden student loan relief and struck down key opinions such as Roe v. Wade (abortion).
Since Dobbs v. Jackson, requests to "expand" and "pack" the Court from within the Democratic Party have grown stronger. Only a few progressive icons, like Senator Warren and Senator Markey, initially supported the idea. Yesterday's opinion, which struck down Affirmative Action (Students for Fair Admissions Inc. vs. Harvard/UNC), was crucial in drawing into the movement even more high-level Democrats. Soon after the opinion was released, Senator Tina Smith from Minnesota tweeted, "Expand the court," joining a dozen other Senators who had already done so in the past.
I oppose expanding the Supreme Court. First, there is nothing wrong with conservatives having a majority: President Trump followed the Constitution when he nominated the three Justices. He did nothing illegal; he went by the book and passed his nominees onto a Republican-controlled Senate, which confirmed them. Democrats are so fast in (rightfully) criticizing Republicans for disrespecting the democratic institutions, laws, and unwritten rules of the country, yet they keep thinking expanding the Court is legitimate. It simply isn't. While no written rule limits the number of sitting SCOTUS associate Justices, tradition is that only up to nine shall be part of the country's highest judicial authority. What Democrats want is nothing short of a power grab seen in countries where the authoritarian executive threatens opposition-led institutions to assert dominance. "Democrats" should carefully consider the optics of such a proposal: in 150 years, expanding or shrinking the Court has always been a sign of backdoor deals, political machinations, or corruption. With the Court's authority already put under scrutiny by partisan extremists, expanding the SCOTUS would be fatal. Few would recognize legitimate the opinion of a court expanded for political goals.
Furthermore, I don't know what proponents of Court-packing think will happen. This restructuring goes both ways, and Republicans will be able to expand the Court as much as they like. If progressives aim for a 150-member court by the end of this decade, they should say so. In 2020, even President Biden, then just a candidate, recognized the impracticability of packing the Court: "No, I’m not prepared to go on and try to pack the Court, because we’ll live to rue that day [...] We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the Court has at all." (ABC News)
Moreover, I believe that a reason why many voters, especially young people, support packing the Court with liberal Justices is that they ignore how balanced the body is. In the media, it seems as if the 6-3 conservative majority tyrannically dominates the SCOTUS and the country, legislating in the place of the executive and pushing for unpopular measures. There is nothing further from the truth. Indeed, the Court has never been as polarized in rhetoric, but many, if not most, of its rulings, are unanimous or with large majorities. Politifact says that "Despite a widespread belief that the Supreme Court is hopelessly divided along partisan lines, 9-0 rulings aren’t rare at all. Since at least 2008, they’ve usually accounted for a plurality of rulings, and they never fell below 36% of all rulings during that period." The press tends to focus on those 5-4, 6-3 rulings along ideological lines. Still, most complex daily legal issues for the Court are resolved either unanimously or decisively (with bipartisan approval). The Supreme Court was designed to be independent of the legislative and executive power, generally from politics and its vicissitudes. With this proposal, progressives want to tie the SCOTUS to the change in power and the daily fluctuations of public opinion, rendering its authority effectively null and severely destabilizing the rule of law in this country. That is ridiculous. Of the 67 decisions released in 2019, only seven cases had the expected political split, with at least one liberal or conservative Justice flipping in the rest of them.
Contrary to what the partisan "Democracy Docket" claims, to save democracy, we don't need to expand the Supreme Court. Though, if we want to weaken the republic, that is undoubtedly the path forward. Political parties in this country need to learn once again that democracy requires patience and fair game. The conservative Justices on the Court will eventually retire or die, meaning that Democrats will have their chance once in power. And no, not agreeing with a decision made by the country's highest judicial body is not enough reason to restructure it and change 150 years of history. Reforms can and should be implemented in the Supreme Court so that the body can stay independent and match our times. However, measures going in the opposite direction and tying the SCOTUS to Congressional politics are not it. For example, we might reinstate the Senate filibuster for SCOTUS nominees to have more objective, less partisan Justices on the Court. States like New Jersey implement this for their own state Supreme Courts.
Cover photo: AP Photo/J. Scott Applewhite