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Just Pack the Damn Courts

The Left shouldn’t wring its hands about whether we should pack the courts or not. Just pack the courts.

US Supreme Court justices pose for their official portrait on November 30, 2018 in Washington, DC. (Chip Somodevilla / Getty Images)

We are in the midst of an unprecedented judicial disaster. With the elevation of Amy Coney Barrett, not only is the current Supreme Court now dominated by a six-to-three conservative supermajority, but a full third of the justices worked on the Republican legal team in Bush v. Gore. This Republican domination is true in the lower federal courts as well; Trump-appointed judges now occupy more than a quarter of the federal judiciary. The conservative legal project has succeeded.

In recognition of this catastrophe, many Democrats have begun to voice support for an idea that, until recently, would have been considered unacceptably radical or outright insane: court packing. Democratic politicians across the political spectrum — from Ilhan Omar and Alexandria Ocasio-Cortez to Chuck Schumer and Steve Bullock — have either toyed with or embraced the strategy of expanding the court beyond its familiar nine justices, of counteracting conservative judicial hegemony by adding some number of left-leaning jurists. Even Joe Biden — who, a year ago, flatly rejected court packing — has recently bowed to pressure from his left and expressed an openness to the idea, telling 60 Minutes that, if elected, he would appoint a bipartisan commission of legal scholars to study court reform.

Court packing specifics vary greatly, from the almost comically inept two seats being considered by many mainstream Democrats, to the six proposed by Take Back the Court founder Aaron Belkin, to the ten put forth by journalist Elie Mystal. Some have noted that packing the Supreme Court is not enough; Democrats should pack the lower federal courts as well. In spite of these differences, for the first time in almost a century, court packing seems like a viable strategy for the Democratic Party.

Into this moment of blazing opportunity have stepped a handful of prominent legal academics — to douse the whole thing with water. Court packing, they argue, is the wrong approach. What we need, instead, is permanent, structural court reform. Although superficially compelling, their arguments ignore how political change is actually achieved. Given the extraordinary potential of this moment, their arguments against court packing are misguided at best, harmful at worst.

On October 13, Samuel Moyn and Ryan Doerfler — law professors at Yale University and the University of Chicago, respectively — published a much-discussed article in the New Republic titled, “Making the Supreme Court Safe for Democracy.” In the piece, the two dismissed court packing as a surrender to antidemocratic judicial supremacy — “preserving the standing of Supreme Court justices as royalty but vying to confirm left-leaning monarchs rather than right-wing ones.”

Instead of pursuing court packing, they argued, Democrats should try to “disempower” and “marginalize” the court. The two scholars stopped short of advocating specific means of doing so, but they mentioned a variety of options, such as “limiting the jurisdiction of the federal courts (known as ‘jurisdiction stripping’), erecting a parallel judiciary inside the executive branch to enforce new laws, or requiring supermajority consensus among the justices to void federal legislation.”

This essay is, apparently, part of a broader project for Moyn and Doerfler, who have published several similar pieces, given numerous interviews (including one to Jacobin), and even created a website called SCOTUS Reform; the two are also set to publish a much longer law review article, arguing for “disempowering reforms” (like jurisdiction stripping) as opposed to “personnel reforms” (like court packing).

This law review article, in turn, is explicitly framed in opposition to a different law review article, by the law professors Daniel Epps and Ganesh Sitaraman, called, “How to Save the Supreme Court.” In this article, as well as an earlier piece in Vox, Epps and Sitaraman present two alternative nonpartisan court reforms: “Supreme Court Lottery,” in which randomly selected lower court judges would periodically sit as justices, and “Balanced Bench,” in which the court would be “composed of an equal number of Democratic- and Republican-selected justices, plus additional justices drawn from the circuit courts on whom the ‘partisan’ justices would have to agree unanimously.” Still, other prominent legal scholars have echoed these calls for nonpartisan reforms, from imposing term limits to rotating out older justices to creating a new court altogether.

In spite of some differences, these scholars are united in their desire for an eternal, structural, essentially nonpartisan reform — rather than the hyper-partisan fight court packing is sure to be. Moyn and Doerfler counsel against allowing the Supreme Court to “continue to be a site of existential political confrontation” and instead seek some way of “bringing stability to the situation.”

After all, even if Democrats manage to pack the court in the short term, “within a few years, Republicans would predictably retaliate by doing the same . . . And so the spiral would go.” The “endless” nature of this “spiral” is “why we should avoid partisan packing,” added Moyn’s Yale colleague, Akhil Reed Amar. Epps and Sitaraman, meanwhile, hope that their “new framework for Supreme Court reform” can create “a stable equilibrium even if initially implemented using ‘hardball’ tactics.”

To be clear, Moyn and Doerfler would probably object to being lumped in with Epps and Sitaraman. The latter do not wish to disempower the court, but rather to impose on it a bipartisan balance; the former wish to destroy judicial supremacy and vest greater power in more democratic institutions. Yet fundamentally, it is worth viewing all of these scholars as embracing broadly similar reforms.

All of them believe the court is structurally flawed, and all wish to find a way to remedy this forever — either by enforcing perpetual ideological balance on the court or by altering the court’s powers. All believe that a fix is possible that would render the court a fair playing field, where legal arguments could be dispassionately assessed by neutral judges and the superior arguments would prevail. They seek stability, an end to the escalating partisan warfare engulfing the judiciary.

These scholars — let’s call them the structuralists — are thinking about court reform all wrong. They embrace a fantasy that law can be divorced from politics. They are looking for ways to permanently fix the courts.

But, no matter the fix, the courts will always be political — law is inherently political — and politics will always be about power.

US Supreme Court justices Neil Gorsuch and Brett Kavanaugh on February 4, 2020 in Washington, DC. (Mario Tama / Getty Images)

The Right understands this, which is why they have been so successful in court of late. Conservative political and legal activists aren’t looking to fix the courts or even formulate superior legal arguments; they know that winning in court is simply about having more power.

This is why Republicans blocked the appointment of Merrick Garland and then promptly ignored their own rationale after Ruth Bader Ginsburg died. This is why conservative judges have been issuing more and more decisions that contain no explanations at all, a conservative legislature blocked an unprecedented number of well-qualified lower court judges nominated by Barack Obama, and a conservative president has appointed shockingly young and unqualified — but questionably ideologically committed — jurists. This is why Republicans have been packing state courts for years, sometimes with great success. This is why conservative judges prevail even when they write opinions rife with glaring errors and omissions.

The point of progressive court reform should not be to fix the courts, but rather simply to use the courts to enact left policy goals. And the best way to do that right now is to pack the courts. The problem with the courts is not that they’re too political or too powerful or too partisan — it’s simply that they’re too far right.

The structuralists are misguided because the courts can never be made spaces shielded from political struggle. Stronger courts, weaker courts, ideologically balanced courts, ideologically unbalanced courts — all are political courts. The way to achieve a more just world through law, then, is not to try to fix the courts, but for the Left to utterly dominate them — as the Right currently does.

The structuralists are probably right that courts have become far more powerful than they were supposed to be, but no matter. Politics is not about achieving some sort of Montesquieuian ideal — it is (or, at least, should be) about improving people’s lives. If the most effective way to do that is to win in court, and the most effective way to do that is to pack the courts, then pack the courts.

And it has been effective. In the 1930s, Franklin Roosevelt sought to expand the court because it was consistently blocking his ambitious economic programs. As a result of his threat, the justices conceded the constitutionality of much of the New Deal. Moyn and Doerfler acknowledge that “[m]ost historians agree . . . that the specter of an expanded court was enough to persuade the existing justices to adopt a more accommodating stance on the New Deal.”

The two depict the aftermath as an unacceptably tenuous victory — “the New Deal survived — but only because a majority of the Supreme Court agreed to intervene rarely” — yet misunderstand that a tenuous victory is the only kind of victory that can be had in politics. The faction in power is only victorious so long as it holds power.

The structuralists are also right that the Republicans will certainly try to respond in kind, but, well, that’s how it goes. That’s how politics works. “If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again,” commented Belkin.

Epps and Sitaraman hope to avoid this partisan back-and-forth by forcing the court to include equal numbers of Democrats and Republicans, or else randomly selected judges. But this forced bipartisan balance would do far, far less to achieve leftist legal goals than an unbalanced but more heavily leftist court. (It also ignores the rightward lean of most current Democratic appointees.)

Moyn and Doerfler hope to avoid the struggle by marginalizing the court. Yet, unspecific as their proposal is, it’s unclear how much would actually change as a result of any of their reforms. Disempowering the courts would probably only result in what is currently judicial power being vested in other organs of government, and the Right would simply focus its efforts on those.

The structuralists correctly note that, but for a few significant victories like Brown v. Board of Education, courts have been quite bad for the Left over the last half-century, but they claim this is because courts are fundamentally undemocratic. This is an ahistorical interpretation. Rather, courts have been harmful to the Left simply because of the Right’s broader capture of the judiciary, as well as nearly all of the levers of political power, over the last sixty years. If the Left had captured the courts instead, it would have won far more cases.

When Moyn and Doerfler write that “it is unimaginable that even a liberal Supreme Court would ‘discover’ in the Constitution a positive right to, say, real environmental justice,” they betray a profound lack of imagination. A Supreme Court with six conservatives, three liberals, and a dozen leftists surely could. Indeed, fifty years ago — before the triumph of the conservative legal movement — a district court judge in Montana did effectively discover a substantive constitutional right to the environment; fast-forward to the present, and the climate crisis has become so acute that even mainstream liberal judges are inching closer to embracing positive environmental rights.

To be sure, court packing is no panacea. Democrats must add justices in addition to ending the filibuster, abolishing the electoral college, and granting statehood to Washington, DC, among other ideas now finding traction among mainstream politicians. Democrats should also strongly consider impeaching Supreme Court justices, as, again, Republicans have done at the state level for years. And they should consider amending or even replacing the Constitution.

But court packing must be toward the top of the Democratic agenda, for it is perhaps the most procedurally straightforward and unquestionably constitutional reform they could enact. The Constitution and centuries-old statutes plainly allow Congress to determine the size of the court, and the number of justices has changed repeatedly throughout history; further, Congress has routinely expanded lower federal courts in recent decades (and even sitting judges say another expansion is long overdue). The Democrats should pack them all.

As a tactical matter, failing to unite behind court packing risks killing its current momentum among mainstream Democrats. By intellectualizing a problem of raw power, these legal scholars like Moyn and Doerfler are risking a once-in-a-generation opportunity with an unneeded distraction.