Expanding the Supreme Court Is Not ‘Radical’

As Americans grapple with the prospect of President Donald Trump cementing a 6-3 Republican majority on the Supreme Court just weeks before a presidential election, Court-packing proposals have at last taken their rightful place in mainstream Democratic politics. They are, more or less, the only way to prevent a conservative Court from stuffing every item on the progressive agenda into the garbage for the foreseeable future.

Media coverage often describes the possibility of an expanded Court as “radical.” Conservative outlets, pundits, and politicians, as you might guess, are especially fond of invoking this ominous language. “Senate Democrats are openly threatening to radically reshape our nation’s highest court,” warns Georgia Senator David Perdue. “They want to pack the Supreme Court with additional activist justices who will reinterpret the Constitution to fit their radical, socialist agenda.”

The implicit assumption here is that the Court, in its current configuration, is a stabilizing force for this nation’s democracy, and that formally amending its size for the first time in a century and a half could dangerously destabilize it. But the status quo—the Court’s structure, its membership, the power it wields—is already destabilizing, extremist, and dangerous. Expanding the Court is not “radical.” Expanding the Court is a reasonable, proportionate response to a system that obviously failed a long time ago.

Consider the Court’s current membership. In six of the last seven presidential elections, the Republican nominee has lost the national popular vote. The last two Republican presidents first took office despite earning fewer votes than their Democratic opponents. Yet soon, those presidents will have selected five of the nine justices. One, Neil Gorsuch, occupies a seat that Senate Majority Leader Mitch McConnell held open for more than a year, reducing the Court’s size to eight and relenting only when a president of his party could fill the coveted vacancy. Balancing the Court via the normal legislative process would be, at the very least, no less “radical” than one chamber of one branch of government unilaterally contracting the Court for as long as its leader deemed it politically expedient.

A similar problem exists in the Senate, a constitutional anachronism that is basically affirmative action for Republican politics: The 50 senators who voted to confirm Justice Brett Kavanaugh in 2018 represent states covering about 44 percent of Americans. The group that eventually confirms federal appeals court judge Amy Coney Barrett, Trump’s reported pick to replace the late Justice Ruth Bader Ginsburg, will be similarly underwhelming. During the 2018 midterms, voters cast less than 40 percent of their ballots for the Republican Senate candidates, who nonetheless expanded their majority from 51 to 53. A compounding series of undemocratic outcomes has effectively handed conservatives a vise grip on the nation’s highest court.

None of this is to suggest that the Court should perfectly reflect the will of the electorate, or dutifully rubber-stamp whatever the executive and legislative branches decide to do. But it also shouldn’t prop up floundering parties or fading ideologies indefinitely, thwarting the efforts of coalitions with popular mandates to do even the basic work of governing. 

A 6-3 Republican Court whose life-tenured members are openly hostile to preserving reproductive rights, addressing climate change, protecting the environment, safeguarding the civil rights of minority groups, and holding free and fair elections is “radical” because it is wildly out of touch with the hundreds of millions of people whose lives their decisions will control. This Court is not a check or a balance. It is a hostage situation.

The Court’s faults, however, extend far beyond the particular group of justices who currently sit on it. This institution charges nine wealthy attorneys, trained at the same tiny circle of law schools, with the herculean task of privately negotiating uneasy resolutions to America’s most contentious disputes. (Barrett, who graduated from Notre Dame Law School in 1997, would be the first justice who did not attend Yale, Stanford, or Harvard law schools to be confirmed since the Ford administration.) Every sudden vacancy kicks off months of frenzied partisan warfare, replete with breathless, competing prognostications about how a nominee, who is careful to say nothing of substance, may or may not rule on some hypothetical high-stakes case. It is a patently ridiculous system of governance, and you would immediately recognize it as such if not for the fact that this is the way we’ve always done it.

Granted, the Founders likely never envisioned the justices becoming as powerful as they are today. The Constitution has surprisingly little to say about the Supreme Court beyond its existence and its members’ subjectively-defined terms of office (“during good Behaviour”). The Court’s power of judicial review, which allows it to strike down laws that conflict with the Constitution, appears nowhere in the text; it is the brainchild of Chief Justice and legendary power-grabber John Marshall, who basically created it out of whole cloth in 1803. 

Since then, the judiciary has continued to siphon power from the politically accountable branches of government, whose members have been increasingly happy to foist seemingly intractable problems on judges who answer to no one. Rather than answer hard questions or take tough votes or commit to convincing people of the merits of their policy preferences, lawmakers can instead pour themselves into the task of empowering like-minded jurists who (they hope) will implement those preferences by judicial fiat, solemnly asserting that the law compels a particular result—one that just so happens to comport with their personal beliefs. 

This feature of the federal judiciary, as New York Magazine’s Eric Levitz writes, is extremely valuable for Republicans, because it gives a party in decline the chance to nevertheless implement an unpopular policy agenda, all while flying largely under the political radar. (This feature of the federal judiciary also explains why conservatives have invested far more resources over the years to seize control of it.) Judges have slowly transformed into an entrenched cadre of robe-clad superlegislators, where the balance of power can hinge on something as arbitrary as which octogenarian lawyer decides to retire at the right moment or happens to die at the wrong one. Such a small, insular system is extremely vulnerable to exploitation and gamesmanship, especially if the side playing the game more strategically also gets a little lucky along the way. The precise timing of Ginsburg’s death may have been a fluke, but the crisis that ensued is not; it is a foreseeable result of the Court’s fundamental brokenness.

Life tenure also meant something very different 230 years ago than it does today, as savvy investments in young, loyal talent can pay off over the course of multiple generations. My daughter will be born this November. When Barrett is 87—the age at which Justice Ginsburg died—my daughter will be thinking about celebrating her 40th birthday. The modern Court is functionally a conservative oligarchy on the verge of swallowing whatever remains of representative democracy, hoping you won’t notice.

The Court-packing battle is just one of many debates in which reactionaries weaponize terms like “radical” to obfuscate the urgency of change. Which of these is more dangerous, more destabilizing, more harmful: reducing the legal system’s dependence on a failed mass incarceration system, or continuing to blow hundreds of billions of dollars to put people in cages instead? What strikes you as “illegitimate”: disbanding police departments, or investing even more money in an ineffective public safety regime that cannot stop killing Black and brown people? Relative to the status quo, enacting a Green New Deal might feel “radical.” Relative to the impending heat death of the planet hastened by decades of unchecked human greed, attempting to decarbonize the U.S. economy by 2050 is, I would argue, actually kind of modest.

Should Democrats capture the White House and the Senate this fall—and then have the courage to use the power Americans entrust to them—expanding the Court will be a lot of things. It will be significant. It will be groundbreaking. But it will not be “radical,” because confronting an existential crisis that threatens to hollow out democracy is exactly what people should expect their government to do. 

Jay Willis is a senior contributor at The Appeal.