Don't Pack the Court

Adding seats to the Supreme Court would increase polarization and reduce trust in the rule of law.

Rep. Hank Johnson of Georgia, Sen. Ed Markey of Massachusetts, Rep. Jerrold Nadler of New York, and Rep. Mondaire Jones of New York announcing the bill April 15, 2021, at the Supreme Court in Washington, D.C. (Photo: J. Scott Applewhite/AP)

By Tom Ginsburg

Last week, congressional Democrats­ introduced a new Judiciary Act that would pack the Supreme Court, expanding the number of justices from nine to 13. The proposal is simplistic, doomed, and likely to exacerbate our problem with the courts—even as more practical proposals are disregarded.

Start with simplistic. The entire bill is less than 100 words and does precisely one thing: It gives Democrats an opportunity to make four new appointments to the Supreme Court. Though it is called the Judiciary Act, it does not purport to address issues of federal jurisdiction, the size of appeals courts, or any of the technical matters that are traditionally the subject of such bills. Instead, it recalls President Franklin Delano Roosevelt’s failed proposal in 1937 to pack the courts to secure the New Deal. That proposal was rejected by Democrats as a threat to liberal democracy, and for good reason: If one party moves to pack the courts when it holds the Senate and presidency, the other side will likely do the same when the tables turn, and the courts will be viewed, even more than they already are, as just another partisan branch.

Perhaps for this reason, the speaker of the House, Nancy Pelosi, has signaled that the bill will be dead on arrival in the House, and so the bill is political theater. Representative Jerrold Nadler, one of the bill’s sponsors, has suggested that the motive is simply to ensure that there is one justice for each of the judicial circuits, which was a norm in the 19th century. That justification is fooling no one, for if that were the only motive, he could have proposed the bill last year when the Republicans controlled the Senate. This is a clear appeal to partisanship.

One might see the logic if there were no other ideas out there. But during the presidential primary elections in 2020, Democratic candidates drew on years of thinking by academics and nonpartisan groups like Fix the Court to endorse various proposals for court reform. As a candidate, Joe Biden sought to tamp down expectations by saying he’d study the issue, and he has now set up a Presidential Commission to examine possible reforms. Some members of Congress apparently do not want to wait.

To fix the courts, one first has to diagnose the problem correctly. The problem that our country faces is the politicization of the courts, which has built up over many years but has intensified since 2016 when then-Senate Majority Leader Mitch McConnell refused to hold a hearing on President Obama’s nominee, Merrick Garland. The process of appointing justices to the Supreme Court has turned into an opportunity for partisan political mobilization and scorched-earth warfare, as the hearings for Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 showed. Gone are the days in which David Souter and Ruth Bader Ginsburg could be confirmed with 90 or more affirmative votes. Instead, Supreme Court appointments have become almost purely partisan affairs. Partisan packing of the Supreme Court would not end this cycle but simply exacerbate it.

So why are we in this position? Part of the problem is that we are alone among democratic nations in having true lifetime appointments for the Supreme Court. Other countries with “life” appointments, like India or Japan, have a mandatory retirement age, and so their justices end up serving relatively short terms. In contrast, our system increases the stakes of appointments, since senators can expect the appointee to serve for many decades. As Aziz Huq and I have written elsewhere, this encourages appointing the youngest co-partisan one can find, about whom the public has little information. This means the nominees have less experience, which might hurt the legal quality of their decisions. High stakes, in turn, draw interest-group mobilization, with each side thinking about the nominee as “ours” or “theirs” and using the confirmation process to win political points and raise money.

The Supreme Court itself is partly responsible for raising the stakes by inserting itself into partisan disputes and becoming a central political institution in our national life. Given the small number of justices, this means that the idiosyncratic preferences of a single individual can affect millions. Justice Anthony Kennedy (who, it is worth noting, was confirmed unanimously) acted as the deciding vote in a series of politically charged cases, giving us marriage equality, Citizens United, the end of the juvenile death penalty, and President George W. Bush. These things may be good or bad, but having one person decide them for the country is not the way to run any democracy. 

The Democrats’ proposal would exacerbate these problems. If the plan goes through and President Biden nominates four new justices, the partisan configuration on the Court would go from 6-3 to 7-6. Whoever happens to be in the ideological middle on any particular issue could have the deciding vote, and that probability grows with the political valence of the case. 

A far better plan would be to reform the courts in a bipartisan way, perhaps by expanding the federal bench as a whole and restoring the filibuster for judicial appointments. Many courts are understaffed, and the U.S. Judicial Conference could recommend the creation of new judgeships. One might imagine the Judiciary Committee of the Senate coming up with a bipartisan list of nominees that it would approve and sending that to the president to make his or her choice from it. 

And many of the existing ideas for Supreme Court reform are good ones. An 18-year term, a rotation system in which federal judges can move onto the Supreme Court for a limited period, or a system in which each president appoints at least one justice: All of these have merit because each would reduce the stakes of individual appointments. The Democrats’ plan increases the stakes. We should reject it as a threat to liberal democracy, the court, and the country. 

Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.