With the death of Ruth Bader Ginsburg and the nomination of a polar opposite replacement, only one response that makes any sense: Expand the Supreme Court. The only real question is by how much. There are other responses that can do some good — perhaps even more good. But without court expansion, the existing court can, and almost certainly will, strike them down.
This article first appeared in Salon.
Yes, some call it an extreme step. But there's a more extreme step: Simply ignore the court's decisions — as some Republicans argued in the 1850s, in response to the Dred Scott decision. More to the point, this is an extreme situation that demands extreme responses. As Boston College law professor Kent Greenfield tweeted on Sept. 21:
Some #SCOTUS facts:
- 15 of the last 19 appointments were made by GOP Presidents. (16/20 if #Trump gets another.)
- The last year a majority of the justices were Dem appointees: 1969. Meanwhile, the GOP won the popular vote in the presidential election once in 30 years (2004).
It's also been more than 20 years since Republicans represented a majority of voters in the Senate, making the condition of minority rule even more extreme. It's also self-reinforcing: As Greg Sargent notes, a 6-3 conservative majority could strike down a new version of HR 1, the pro-democracy reforms that House Democrats passed in 2019, including wildly popular nonpartisan redistricting commissions.
The same fate awaits virtually everything else Democrats have campaigned on, as The Nation's justice correspondent, Elie Mystal, argued last February in an article bluntly titled, "If We Don't Reform the Supreme Court, Nothing Else Will Matter":
Not a single significant policy or initiative proposed by the candidates for the Democratic presidential nomination is likely to survive a Supreme Court review. Nothing on guns, nothing on climate, nothing on health care — nothing survives the conservative majority on today's court.
And that was seven months before Ginsburg's death. Now, as election law maven Richard L. Hasen puts it, "Trump's New Supreme Court Is Coming for the Next Dozen Elections." This threat to our democracy comes at a time when others around the world are increasingly turning to citizens' assemblies as a way to expand democracy beyond elite-defined partisan bounds, as I discussed last December. At least one new book lays out a plan for introducing direct democracy at the national level, starting with advisory referenda.
This wildly anti-democratic situation — although temporarily normalized by our myopic, dysfunctional elites — actually violates deeply entrenched bipartisan norms, as underscored by University of Washington political scientist Scott Lemieux:
American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.
What's more, Lemieux notes, previous violations of this norm "all led to constitutional crises that ended only when the court itself backed down," including Franklin D. Roosevelt's oft-misremembered confrontation, which put an end to the court striking down New Deal legislation, most notably the Social Security Act. Nor is there any "normal" way out through political victory, Lemieux warns: A 6-3 conservative majority "would be essentially impossible for Democrats to displace through ordinary means, irrespective of the results of future elections."
So what might seem in isolation like an extreme or unwarranted norm-breaking move by Democrats is actually the exact opposite: an act of restoration to the guiding shared norms that have predominated across better than two centuries. Continued violation of these shared norms will only intensify the erosion of trust that brought us Donald Trump in the first place, and which he has greatly intensified with the enthusiastic cooperation of Senate Republicans led by Mitch McConnell.
So expanding the Supreme Court is the only option. As I said earlier, the real question is by how much.
How many seats?
Adding six new seats to the court would compensate for McConnell's double theft, with a two-seat penalty for deterrence. It would reflect the reality that norms are not self-enforcing. As Henry Farrell explains at Crooked Timber, "norms don't just rely on the willingness of the relevant actors to adhere to them. They also rely on the willingness of actors to violate them under the right circumstances. If one side violates, then the other side has to be prepared to punish."
Indeed, the more nakedly one side pursues power as an end in itself, the more necessary it becomes to punish them, since they've proven themselves immune to anything else. Trump's lawlessness is Exhibit A in this regard, but it was his commitment to the GOP's judicial agenda that allowed him to win in the first place, and that has bound the party and its followers to him even now, in the midst of an horrific plague he's done far more to spread than to stop.
Adding just three seats would be a gift, creating a balanced 6-6 court that would necessarily rule more narrowly and less contentiously. Law professor Eric Segall, author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges," made precisely this argument about the 4-4 court in 2016.
After the death of Justice Antonin Scalia that year, amid widespread expectation that Hillary Clinton would be elected president, Segall told me in an interview, he believed "this was a moment in time that we can get left and right at the table and constructively weaken the Supreme Court for both sides.
"If you give me 10 minutes with every member of Congress I could convince them," Segall said, "because they get more powerful as the court gets weaker, by definition." By the way, the court originally had an even number of justices — six. Nothing about the current arrangement is enshrined in the Constitution.
Then there's going big: Adding 10 seats could open to the door to a whole different world, with a structure similar to the federal circuit courts, as Elie Mystal argued in the Nation article mentioned above. Most cases would be heard by a three-judge panel, chosen at random. It would take a majority vote of such a panel for the full court to consider a case. This would also tend to reduce the court's power, and produce narrower, more moderate decisions that intrude less on democratic decision making, Mystal contended.
He also linked to a proposal from the group Fix the Court for a system of fixed 18-year terms staggered to ensure an even distribution of presidential appointments. After 18 years, judges would shift to senior status, a well-established circuit court practice. Some claim this would violate the Constitution. But it seems clear that the court itself could rule otherwise, and there are good reasons to think that it should. That idea has gained increasingly broad ideological support, but as Mystal acknowledges, the existing court would likely strike it down.
Again, that's why old-fashioned, blunt-force court-packing is the most viable option — at least initially. Pack it big enough — with 10 new justices, as Mystal suggests — and you could wind up with a new court that would then OK a term-limit system.
But whatever the number and however it's conceived, court expansion is an absolute necessity, as Mystal's prognosis makes clear. As he argued more recently: "Name me an inventive, nonpartisan solution to the current dilemma faced by Democrats, and I will show you a constitutional defect the conservative Supreme Court will use against it. The only exception is court expansion."
This doesn't mean other ideas shouldn't be considered — I think they should. But it's futile to pursue them without court expansion leading the way.
Imbalances and obstacles
There are two further imbalances we have to fight. First comes the decades' worth of asymmetrical "constitutional hardball" and even anti-democratic "constitutional beanball," which I've written about here before. As the above-cited Scott Lemieux recently noted, this began in the Nixon administration and has given Republicans a twofold benefit: "The court has been generally and increasingly conservative, and yet Republicans have both placed a higher priority on it and have had negative attitudes towards it."
At bottom, conservatives are driven by a "restoration fantasy" of a world that never existed, and the Supreme Court is their way of getting there. Some sign onto a 19th-century fantasy of utterly unregulated capitalism, some to a Christian nationalist fantasy of America as a biblical nation — or, more radically, to a Christian Reconstructionist fantasy chillingly similar to "The Handmaid's Tale." In the legal arena there are the dual fantasies of "textualism" and "originalism," which is now incoherently collapsing into a bewildering array of forms — "Originalism is a 'They' not an 'It,'" as Segall describes.
What unites all these contradictory worldviews is a rejection of science, progress, facts and America's increasingly diverse, actually existing majority. The Supreme Court is all they have left. Without it, all is lost in their paranoid worldview. Liberals have never taken such a desperate, extremist view — at least not since the 1850s, when there were good, credible reasons to do so.
The second imbalance is that while Democratic voters have finally woken up — Lemieux points to midterm polling, along with the mountains of cash raised in the wake of Ginsburg's death — Democratic elites have not. Senate Minority Leader Chuck Schumer and others have repeatedly refused to discuss expanding the court, despite the obvious deterrent power such a threat could carry. (Joe Biden has not ruled it out, as Kamala Harris made clear in her recent debate with Mike Pence — but he isn't talking about it openly either.) Democrats' self-defeating, one-step-at-a-time focus is the exact opposite of the long-term strategy Republicans have pursued for decades. The elites' narrow focus has a long-term demobilizing effect, which has suited the Democrats' corporate wing just fine. But that simply can't be sustained any longer, in the post-Parkland, Climate Strike, Black Lives Matter, COVID-19 world that now confronts the threats Mystal cites.
If Democrats don't act to expand the court if and they take power in January, they will be signing their own death warrants. As Mystal tweeted:
Expanding the court upon victory is going to be the HEIGHT of the Dems political power to do this. The illegitimate process to install ACB will be fresh.
Also, it's the height of the reform argument. Trump broke the court just like he broke everything else. LET'S FIX IT.
One major obstacle to overcome is the misguided notion that democratic norms are self-reinforcing. Another is confusion over what those norms really are and how they work. As Henry Farrell of Crooked Timber points out, the perception of FDR's court-packing as a dangerous, norm-breaking effort that failed — as it's presented, for example, in "How Democracies Die" — is incomplete, at best. Something more fundamental was going on. In the face of Roosevelt's threat, the court stopped striking down popular legislation, including the Social Security Act: "One norm that had been pretty systematically trashed – judicial respect for what citizens and their democratically elected representatives actually wanted – was only preserved through Roosevelt's credible threat to upset another norm."
Segall sees that as a valuable precedent. "This Court needs to be scared into humility," he told me. "FDR did it and it worked, like, for 30 years."
Weakening the Supreme Court
"As a general policy matter, I'm in favor of anything that weakens the court and makes it less partisan and less political," Segall said when I asked about Mystal's idea to have small groups of justices sit in panels, potentially reviewing each other's decisions. The lack of review makes the court into a political body, he argues in "Supreme Myths," so having most decisions made by smaller panels, while it would not end that problem, would surely diminish it.
But there's be a hitch. "I am not 100% sure that's as clearly constitutional as some other proposals," Segall warned, "because Article III [of the Constitution] says that the judicial power of the United States shall be vested in one Supreme Court. One. So, I don't know."
On the other hand, we've had generations of experience with circuit courts structured precisely as Mystal describes, and no one thinks twice about calling them "courts." While the existing conservative majority might well strike down such an innovation, an expanded court could be expected to lean the other way — another argument for moving quickly. Once you have 19 justices sitting there, the shear impracticality of them all hearing every single case and debating it in such a large forum casts the question in a very different light.
Segall describes another de-escalating, depolarizing path. "Kent Greenfield at Boston College [quoted above] is about to have an op-ed in the New York Times saying that Congress should create a specialized constitutional court, like Europe has, to resolve constitutional questions," he said. "Then Congress can use its jurisdiction under Article III to deprive the Supreme Court of appellate jurisdiction over that court."
Jurisdiction-stripping is an idea that's gotten significant traction on the right in recent years. But it's grounded in text, as Segall notes, since the Constitution says Congress has the authority to restrict or limit the Supreme Court's jurisdiction. To me, the most appealing use of jurisdiction-stripping would be to protect voting rights. John Roberts' delusional ruling striking down a key part of the Voting Rights Act utterly disregarded the 15th Amendment's specific authorization that "Congress shall have power to enforce this article by appropriate legislation." It would be perfectly reasonable for Congress to reauthorize the Voting Rights Act again, this time citing this specific text, along with that of Article III.
Pitfalls of weakening the court
Mystal is skeptical, to put it mildly. "I'm not a huge fan of the various 'jurisdiction stripping' proposals, for a couple of reasons," he told me. "That's exactly the kind of thing Republicans will do to take away minority rights. Remember, as a Black person the thing I fear most is not Republicans or Democrats. It's white majorities trying to kill me. I like the court as a theoretical check against such majoritarian tyranny."
Of course, the Court's record in that regard isn't exactly awe-inspiring, as Keeanga-Yamahtta Taylor recounts for the New Yorker. The 8-1 gutting of the Civil Rights Act of 1875, less than a generation after the passage of the Civil War amendments undergirding it is just one of the less-remembered examples Taylor cites.
But there's a broader problem as well. "I don't have a whole lot of confidence that the Supreme Court will rule that their jurisdiction has been stripped," Mystal said. "More to the point, I fear that they will rule that jurisdiction-stripping is OK on issues where Republicans are already winning, but suddenly rule that the Dems cannot strip jurisdiction on something they actually want to overturn."
In fact, he specifically thinks my idea won't work: "We're not going to have Congress say, 'People can vote and the Supreme Court can't say no,' and then have the Supreme Court just say, 'Oh well, I guess people can vote,'" he said. "The court has already largely ignored the 15th Amendment. They'll ignore jurisdiction stripping too to stop black people from voting."
Finally, as Mystal noted, this doesn't really help with state law, "which is a lot of law and a lot of the most horrible law." He offered a speculative case in which the court rules 6-3 to uphold a new Alabama law restricting abortion "to the first three hours of pregnancy out of wedlock, or whatever." It doesn't officially overturn the Roe v. Wade decision, but effectively outlaws abortion — and jurisdiction-stripping doesn't help. "If your court reform doesn't deal with awful state laws in the South," Mystal said, "then your court reform doesn't really work."
On the other hand, Segall clearly opposed the more extreme move of simply ignoring the court's decisions, as recently advanced by Ryan Cooper and Jamelle Bouie. "If we're going to live in a country that follows the rule of law, I think we have to follow the court's decisions, unless we decide to be a parliamentary system and not a republic anymore," Segall said.
Which is not to say the principle of judicial review has always been respected, or even claimed. Cooper correctly notes that "The weird thing about judicial 'originalism' is that the explicit principle of judicial review is nowhere to be found in the Constitution." (That doesn't bother Segall, given his critique of originalism.) Cooper goes on to say:
Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.
This accurately captures the political nature of that decision, as well as of the Supreme Court more generally. But there's more to the story. "Just because the Supreme Court rules on something doesn't always mean whatever it says goes," Segall told me. "For example, in 1962-63, they end prayer in public schools, but the reality is that in the South there's still prayer in the schools." The INS v. Chadha decision of 1983 supposedly ended the practice of legislative vetoes, but Congress and the president both still use them. And then there's the case of Brown v. Board of Education. As Segall notes, 10 years after Brown, schools in the the South were almost entirely re-segregated. "So I think we already know how we can undo court decisions. It's been done before."
These court-ignoring examples all tilt right. And the counter to them tilted to the left, Segall explained: "It wasn't until 1958 and Cooper vs Aaron" — which denied Arkansas school authorities the right to delay desegregation — "that the Court basically said, 'We're supreme, you have to follow us,' as opposed to 'We decide cases, and let the chips fall where they may.'"
So the historical record doesn't look good. Questioning the court's legitimacy on moral grounds is one thing, but this "solution" seems more treacherous than the problem it's meant to solve.
A troubled record
The examples Segall cites echo the longer historical record laid out by Taylor, which highlights just how poorly protected Black people, women and other disempowered groups have almost always been. "The insistence that the Supreme Court is not a political body is a principle of high folly in American politics," Taylor notes, adding that "as the branch of government that is least accountable to the American public, the Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights."
Along with the familiar 19t-century examples of Dred Scott and Plessy, Taylor cites the "Civil Rights cases" (mentioned above), and, turning to the court's most clearly progressive era, she elucidates how fragile and contingent the achievements anchored in the Brown decision actually are. She notes both the national security argument the Truman administration made against segregation ("Racial discrimination furnishes grist for the Communist propaganda mills," its amicus brief warned), and the rapid backsliding of the court itself:
The Brown decision was a public indicator of progress, but its decree was quickly undermined when, the following year, the Court prescribed that school desegregation be undertaken with "all deliberate speed." Without a directive that the ruling should take effect immediately, the South was provided legal cover to drag its feet, as the racist "massive resistance" to school integration began to take hold. ...
Even when the Court has ruled in ways that appear to be in the interest of minorities or socially and economically marginalized populations, its decisions can be ephemeral, susceptible to partisan shifts, while creating the dangerous illusion of permanence.
This ephemeral status "reduces rights to privileges," Taylor argues. Rather than depending on the Supreme Court, she suggests, "It is through acts of solidarity and struggle that we have been able to secure our rights and liberties." Taylor concludes by saying, "It is long overdue to end the Court's undemocratic role in U.S. society," but without offering any specific suggestions about how to do this. The expansions of democracy I have mentioned in passing—citizens' assemblies, direct democracy through referenda and initiatives — point to one important facet of what can be done. But the Court's existing power must also be reined in. That's what's front and center now.
A fight for peace?
Elie Mystal's approach is notable for combining a fighting spirit with a long-term willingness to depoliticize the court. In February, he argued that adding 10 justices would give Democrats "the political leverage to make the Republicans an offer they couldn't refuse," by compelling them to agree to a larger judicial reform package (including an ethics panel for the Supreme Court), in exchange for a promise that "the 10 new justices could be evenly split" between nominees of both parties. Does that sound like a contradiction? Maybe not.
"I want to fight like hell to win control of the court so that a Democratic run court can be depoliticized," he said. "I know that sounds like a tension, but I can square the circle. Basically the legal arguments between conservatives and liberals on the court and in the law do not break down so cleanly on Republican v. Democrat lines. "That's what makes the law so cool and interesting. But we rarely get to have those debates, because Republicans choose judges based on one thing: the judge's willingness to overturn precedent if it conflicts with the Republican political agenda. That's pretty much it."
That's largely happened because the Federalist Society has taken over the business of selecting Republican judicial nominees, combined with the long-term influence of the Christian right, as described in books like "The Power Worshippers" and "Building God's Kingdom," with results tallied and reflected on here.
"The kind of judge who believes that you can just throw away the 50 years of settled precedent codified in Roe v .Wade, because you personally think abortion is immoral, is also a nutty, extremist judge who believes all other sorts of crazy things," Mystal explained. "You get a whole raft of radical judicial ideology by trying to litmus-test everything around abortion. It's how you get judges who also think the 15th Amendment is just a suggestion, but the Second Amendment is the word of God. It's how you get judges who are constantly waging ideological battles instead of ruling on the specific cases and controversies before them."
Ironically, there was a time when conservatives made just that kind of argument — but it was riddled with bad faith. Mystal would have us focus on what's legitimate. "The goal of depoliticizing the courts is to get more people who are looking at the specific facts of the case, as opposed to always tacking to their ideologies," he said.
"If you want to look at cases, then having a 'diverse' set of backgrounds and experiences and opinions is actually good. There are case-by-case 'conservative' points of view that I actually agree with," Mystal noted. "I don't mind having 'conservatives' on the Court, I mind having intellectually dishonest Federalist Society extremists on the court who are only there to strike down a couple of opinions conservatives hate and carry on an ideology war at all other times."
Mystal concluded with a crucial caveat: "Where I differ from, say, Barack Obama ... is that you have to win the war first before you de-escalate. Conservatives play to win, and Democrats must too. We can have peace, after we win."
Democrats desperately need to heed that call to arms. But they also something more than the fervent desire of their base for a big win. They need an argument. That's where Segall's final point on court-packing comes in.
"In 2020, an institution of life-tenured lawyers second-guessing social, political and educational issues — any kind of issues — based on imprecise text and contested history is a broken institution," he said. "That has to be the Democrats' argument. If they vote to expand the Supreme Court, he concluded, "We're not making it stronger to be more Democratic or more liberal. … We're packing it to make it weaker."