The death of the Notorious Ruth Bader Ginsburg last autumn left empty not just one of nine seats on the Supreme Court of the United States, but also the hearts of American liberals. Their biggest fear had always been that a Republican President could replace RBG with a young, life-tenured conservative judge, resulting in a court stacked with conservative judges, outnumbering the liberals 6-3, and tasked with deciding critically important American legal and social issues for the foreseeable future.
And that is what happened. Justice Amy Coney Barrett is undeniably accomplished (Notre Dame law professor, former clerk of the court she now serves on, working mother). But she is also alarming to some. Her mentor was the late Justice Antonin Scalia, known as one of the most conservative originalists to serve on the court. Her prior work fell squarely on the socially conservative end of the legal spectrum.
The importance of the court's makeup cannot be understated. Its docket reads like a laundry list of the toughest legal, moral, and political issues circling America—the right to health care, abortion access rights, and racial discrimination in voting procedures, with gun control rights not far off the horizon. These decisions will shape not just American law, but also American culture and lives.
The Supreme Court has nine justices—but the Constitution does not require this. The number is established by statute and has changed over time. The court began with six justices and grew to ten. In 1886, due to a spat between Congress and President Andrew Johnson, it was reduced to seven. President Biden, with congressional approval, could therefore appoint additional members to the court—say four or more. These appointments would "rebalance" the ideologies on the bench, and could re-shape the legal trajectory in America. This is quintessential "court packing".
If President Biden embarked on the court-packing path, he would not be the first to contemplate it. In 1937, President Franklin D. Roosevelt threatened to pack the court when it kept striking down pieces of his New Deal legislation. After much acrimony, the problem was solved when one conservative judge retired, while another started voting to uphold New Deal legislation—the famous "switch in time that saved nine."
But is a conservative stacked court a dilemma? Or an opportunity?
The downside to packing the court is obvious: it works well when you and yours are in power, not so well when you and yours are not. If former President Trump is not successfully impeached, for example, and can be elected President again, or if another Republican takes power in the near future, who is to say that they will not add even more appointees to the court, "rebalancing" its makeup once again? When RBG made her famous observation that there will be enough women on the Supreme Court "when there are nine", she wasn't talking about a court of 29 or 49 judges.
But the downside to court-packing isn't just that the power pendulum will eventually swing the other way (as these things always do)—it is that the legitimacy of the Court, and therefore the rule of law, will also be diminished. The Supreme Court, indeed, any court, must be a beacon of legitimacy and non-arbitrary power. It must reign free from politics that plague the executive and elected legislatures—and it must command respect. How could it exist without this, with social minorities depending on it to uphold the law in the face of majoritarian hostility? The court must rule with command by pen, not armies. But if its rulings are just another political statement, why should anyone who doesn't like them obey them? The court can only function if it is independent and legitimate, and widely accepted to be so.
So, are President Biden and his progressive supporters out of options? Not quite: many solutions have been proposed to solve the perceived politicization of the Court.
First, why not limit the lifetime appointments of judges? Other democracies have limits. Canada, the UK, and Australia have age limits, while Germany has both age and term limits. But these sensible solutions come with a rather large (and in this era, probably insurmountable) obstacle. Ending life tenure would require a constitutional amendment, meaning a two-thirds majority in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of State legislatures. And then 38 of 50 states must ratify it. It is a daunting task, with little political will in what some commentators suggest is the most divisive time in America since the Civil War.
Instead, why not limit the terms of federal judges on the Supreme Court to, say, 10 years. The Constitution mandates lifetime judicial appointments—but, arguably, not necessarily a life tenure on the Supreme Court. So, after 10 years on the highest court, the justices would move to another federal court where they can serve out their life tenure.
Other "easier" solutions include creating a separate constitutional court that would be responsible for ruling on all constitutional questions, leaving the Supreme Court to decide all others. But how to ensure this court is also not plagued with political appointees?
Or why not strip the court's ability to choose the cases it hears, thereby reducing judicial activism? Instead, a rotating panel of appellate judges could choose the cases to send to the court. Or all federal appellate judges could become members of the Supreme Court, rotating in panels of nine.
Some suggest that President Biden could also do nothing. This may be the most sensible option. The historical norm has been to preserve the court as it is, rather than risk undoing a key institution that has helped to preserve the world's longest-surviving democracy. The recent storming of the Capitol laid bare some open hostility to, and disrespect for, American political institutions. Perhaps a stable and legitimate court is what is needed to steady the ship. And the justices themselves may realize that this is not the season for the court to embark on polarizing political law-making. (Some fairly recent historical examples include the unanimous decision to uphold Congress' subpoena of the Nixon Watergate tapes (the final nail in the Nixon Administration's coffin), or more recently the court's refusal to hear cases challenging the 2020 election results.)
Will the mere threat of court-packing be sufficient to moderate the Supreme Court's actions? Is the risk to packing the court worth it?
It avoided a constitutional crisis during the New Deal era and convinced certain judges to take a more cautious approach. (Some would argue that is the path on which Chief Justice Roberts has already embarked.) Packing the court would be a political response to political acts—remember President Obama's ill-fated attempt to exercise his constitutional power to appoint Merrick Garland? Or President Trump's rushed appointment of Amy Coney Barrett on the eve of the election? And if the court is already so renowned for its political decisions, why pretend otherwise?
These are a few options that the incoming administration may be studying. President Biden has expressed his disapproval of court-packing in the past, but renewed and vocal calls from progressives for a political solution to a legal problem will probably lead to serious consideration of possible options to deal with the current state. Hopefully, for the sake of democracy and the rule of law, whatever President Biden chooses to do will have, as its preeminent goal, the preservation and enhancement of the legitimacy of the court.
The author relied on many academic and news sources, but quite helpful was the succinct summary by Emily Bazelon's article "How to Fix the Supreme Court" published by the New York Times and available here: https://www.nytimes.com/interactive/2020/10/27/opinion/supreme-court-reform.html. The author would also like to express her gratitude to Michael J. Donaldson for enlightening conversations on US law and politics as well as his helpful feedback on this article. All errors remain, of course, with the author.
Originally Published by Law Matters
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