After Biden’s historic win of the 2020 presidential election, one of the most important questions of his administration is his plans for reforms to the Supreme Court. After the tragic death of Ruth Bader Ginsberg, the Trump administration and republican controlled congress was quick to appoint Amy Coney Barrett as the 9th justice, angering Democrats who said this broke previously established norms. In the wake of this appointment, Biden announced that he would establish a commission that would tackle the issue of Supreme Court reform. Biden claims this team will look at a variety of reforms, but did not rule out the possibility of court packing. This begs the question, if the Biden administration were to decide to take the drastic step of packing the Supreme Court, would this necessarily be a move towards democratic erosion? It depends on the approach they take and the reforms they consider alongside such a historic move.
Constitutionally, there is no guideline stating that the Supreme Court must be a certain size. Congress has the power to increase the size of the court as they see fit. As Democrats eye a potential congressional majority with runoff elections in Georgia, their power to enact such a change rests on those races. While this would be a radical change, it has been considered before. Roosevelt unsuccessfully attempted to pack the courts in 1937, and was ultimately unsuccessful because party members in congress disagreed with the scheme. Levitsky and Ziblatt note, “The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.” [1] However, in the status quo, there is support from much of Democratic leadership to move ahead with court packing, including key players like Jerry Nadler, House Judiciary Committee Chair, and Chick Schumeer, Senate Minority Leader. Thus, while a congressional change to the size of the court may not be unconstitutional, nor against the law, it is up to debate if it is a violation of democratic norms. At its core, it is a question of whether the democrats are furthering the trend of norm-breaking in process of appointing Supreme Court justices or if it is an act of rectifying democratic processes and reversing an imbalanced court that was created via the violation of norms.
There are many who would argue any attempt at court packing would inherently be democratic erosion. Aziz Huq and Tom Ginsburg explain, “The presidential effort to pack the Supreme Court represents a low point for the rule of law in the United States, and is a technique that has been followed by modern-day illiberal democrats.” [2] And they have right to be concerned. Executive moves to pack courts are common in countries with well documented erosion including Argentina, Venezuala, Turkey, Hungary, and Poland to name a few. However, in the context of the U.S., court packing may be a legitimate way to combat decades of democratic erosion perpetrated by Republicans in congress.
The current debate around the Supreme Court comes after numerous waves of norm-breaking and rule changing by Republicans. This effort was most prominently headed by Mitch McConnell. These violations of norms and rules include, over-utilizing filibuster to block appointments, creating a rule that appointments must not be on election years, subsequently breaking that rule and appointing Amy Coney Barrett, and extending the ‘nuclear option’ to Supreme Court appointments so they can’t be filibustered. Many of these changes are contradictory and clearly show how Republicans are simply bending the rules of the game to fit their appointment needs. David Faris explains in his book It’s Time to Fight Dirty, that it is now within reason and in-fact fully justifiable that, along with other reforms, Democrats should pack the courts to combat the years of appointments under a system that eroded the norms of judicial appointments. Thus, a change in the system would not be a slip towards democratic erosion.
However, an important acknowledgment of this change is that it would need to come with a suite of additional reforms to Supreme Court appointments. There are a variety of think-tanks and movements with policy agendas for improving the appointment process of the Supreme Court. These include options such as making the Supreme Court a rotating position of federal appeals judges, instituting term limits, or stripping the power or jurisdiction of the Supreme Court. All these would aim to reduce the hyper-partisan ‘winner takes all’ game of Supreme Court appointments. Even in ‘normal’ democratic times there is an inherent conflict between courts and the presidency. Administrations have a desire to pass their agenda, and when the court steps in the way of that agenda it may be advantageous to change the size of the court or the rules for appointments. Normalizing such a drastic change without additional guardrails or restrictions put in place could pave the road for further democratic erosion down the road.
[1] Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. United States: CROWN, 2018.
[2] Ginsburg, Thomas and Aziz Huq. How to Save a Constitutional Democracy. Chicago: University of Chicago Press. 2018.
It’s certainly understandable that a Biden administration packing the court can be reversing democratic erosion, rather than causing it. Nevertheless, at the same time, this can also set a dangerous trend; if one administration (with a legislative majority) can pack the courts to suit its agenda, so can another. Given recent history in the US, the perils of court packing are certainly not unimaginable.
Although institutions are very important in any democracy, there is always a danger in seeking institutional modes of guaranteeing desirable outcomes in the near future, because if a system can be ‘gamed’ one way, it can also be ‘gamed’ another way.
This is only to say: while I share your views that court-packing might be an immediate solution, I fear what its long-term consequences could be.
This article suggests that democratic erosion can be combated with democratic court packing, as a sort of measure to help remediate any erosion caused by republican lawmakers and Donald Trump. However, should democrats in America focus on “taking the high road”? This has been a democratic strategy in the past, and resorting to court packing represents stooping to the level of openly eroding strategies. Doesn’t court packing always represent erosion as it means stepping over the norms established within the judicial branch? As much as I would have loved for the most recent appointee to come AFTER the election, I believe we tread on a slippery slope if democrats were to also commit gross acts of erosion.
Connor, the retaliatory tit-for-tat of packing the Supreme Court is something that’s been on my mind since Amy Coney Barrett was appointed, going against the “rules” that Republicans placed on Obama in the sunset of his second term. I understand that you are discussing the pros and cons of doing something like that; I have to agree with Randolph that an act that overreaches executive powers will always be seen as an act of democratic erosion, even if this is a means to an end that’s seen as counterbalancing previous Republican backsliding acts. I recently learned that in other countries there are parameters in place for judicial high courts and two in particular are striking: placing a mandatory retirement age for justices, and limiting the amount of years they can serve. Germany allows their justices to serve for only one 12-year term and have a mandatory retirement age of 68. If we were to enact something like that in the United States, there would be a more planful approach to when Supreme Court justices would be appointed (excluding other circumstances). I assume any overhauls would have an integrated approach, but if even the mandatory retirement age was something enacted during the next four years, using 68 years as an example age, four of the nine justices would be forced into retirement and would need replacements. This may have adverse impacts on executive power, so it would need to be carefully considered, but it might decrease the instances of non-experienced, young justices from being appointed due to the life terms.
I would not necessarily agree that court packing wold not lead to democratic erosion. I think that placing more justices on the court would set the percent that if your party wins a majority and finds the court tilting away from your political leanings you could just tip the scales in your favor. While I agree that the ram job confirmation of Justice Barrett was also anti-democratic I do not believe this is the solution. Even if the numbers of justices was set to a population ratio. To the opposing party it would just look like a political move to tip the balance of the court.