The biggest story coming out of the U.S. Supreme Court these days is no longer the confirmation of Brett Kavanaugh. It’s the tumble Ruth Bader Ginsburg took in her office earlier this month, which resulted in three fractured ribs.
Although Ginsburg is out of the hospital and expected to return to work soon, the incident is a stark reminder that, despite the Democratic takeover of the House in the midterms, Trump and the GOP still control appointments to the Supreme Court. And with that appointment power comes the ability to shape the course of American law.
In 1937, FDR proposed adding up to six additional justices to the Supreme Court.
Even before Ginsburg’s accident, the prospect of her departure from the court prompted calls from liberal activists and some prominent law professors to revive Franklin Roosevelt’s court-packing plan of the New Deal era. Some writers on the left, like Current Affairs columnist Vanessa Bee, argue that “court packing is necessary to save democracy.”
While no doubt controversial, such a plan may be the best—and possibly only—way to counter conservative domination of the Supreme Court, which will otherwise continue for decades to come. But implementation won’t be easy. It will require the Democrats to take back both the presidency and the Senate in 2020. It will also require a concerted effort to educate the public about the dangers of leaving the Supreme Court in conservative hands for the foreseeable future.
To assess the wisdom of reviving Roosevelt’s plan, it’s necessary to look back at the original.
In 1937, FDR proposed adding up to six additional justices to the Supreme Court, boosting the total number from nine to fifteen. He pressed for the plan because the court had invalidated critical components of his economic reform program, including the National Recovery and Agricultural Adjustment Acts.
Shortly after FDR unveiled the plan in a fireside chat, however, the court began to reverse its stance on several New Deal measures—the fabled “switch in time that saved nine.” In due course, the court approved a number of reforms that eventually became staples of our political landscape, such as Social Security and the National Labor Relations Act.
The court-packing plan, which never attracted widespread support, was rendered moot by the court’s turnaround. It was sent back to committee after briefly making it to the Senate floor, and never enacted.
It’s easy to understand the reasons behind the plan’s current revival, especially in view of renewed concerns about Ginsburg’s age and medical history. At eighty-five, she is well past the average retirement age of eighty for justices who have left the high court since 1986. She is also a survivor of both colon and pancreatic cancer, and she sustained two cracked ribs in an earlier injury in 2014. Stephen Breyer, the panel’s next senior member and one of its four remaining Democratic appointees, is eighty.
Both Ginsburg and Breyer are hardy souls, but few expect either of them to soldier on much beyond 2020. Whether they retire before or after the 2020 elections, Trump and the GOP will have a virtually free hand in naming their replacements if Trump remains president and the GOP retains the Senate.
With the Supreme Court already tilting decisively to the right, any further attrition of its liberal membership could make the tribunal more conservative than at any time seen since the Gilded Age.
Under the Constitution’s “advice and consent” clause, only the Senate has the power to approve or reject federal judicial nominations. Because the Senate eliminated the filibuster rule for Supreme Court nominations in 2017 to clear the way for Neil Gorsuch’s elevation, the upper chamber exercises that power by a simple majority vote. The House gets no say.
With the Supreme Court already tilting decisively to the right, any further attrition of its liberal membership could make the tribunal more conservative than it has been at any time seen since the Gilded Age. Even with the court’s present five-four conservative majority, a host of core liberal precedents are at risk, ranging from affirmative action and abortion rights to environmental protections, wage and hour standards, voting rights, and same-sex marriage.
Not even Social Security and Medicare are safe from GOP threats to cut back on entitlements. On the fringes of the conservative movement today, rightwing law professors and pundits are reviving long-dormant attacks on both programs, contending that Congress never had the constitutional authority to implement them.
The danger of this happening is real, not theoretical.
For better or worse, federal judicial appointments are for life. On average, since 1970, Supreme Court justices have served 26.1 years on the bench. According to a recent study published by the Harvard Business School, given increasing life expectancy in the U.S., the average tenure is expected to rise over time to 35 years. As Los Angeles Times columnist Michael Hiltzik noted in a column on court-packing published in June:
“The members of the conservative bloc on the court are spring chickens, as Supreme Court justices go. Clarence Thomas is 70, Chief Justice John Roberts 63, Samuel Alito 68 and Neil Gorsuch, the first Trump appointee, only 50.” Kavanaugh, appointed after Hiltzik penned his op-ed, is a scant 53.
Short of retirement, death, or a constitutional amendment lifting lifetime tenure, the only way to remove a Supreme Court justice is through impeachment. And impeachment is an ineffective remedy, requiring conviction by a two-thirds majority in a trial before the Senate. Only one Supreme Court Justice in our history has been impeached—Samuel Chase, who was cited in 1804 for political bias. Chase was acquitted by the Senate the following year.
The advantage of expanding the number of Supreme Court justices is that expansion only requires an act of Congress.
The Constitution does not establish the number of justices. That determination is up to Congress. Throughout our history, the number of justices has varied from six when the Constitution was ratified to seven from 1807 to 1839, nine from 1837 to 1863, ten from 1863 to 1866, and seven again from 1866 to 1869, when the number was raised to the present nine.
Expansion only requires an act of Congress.
If the Democrats reclaim the Senate and hold onto the House, they could abolish the remaining filibuster rules that still apply to pending legislation and increase the number of justices on the Supreme Court by a majority vote in both chambers. A Democratic President could then sign enabling legislation into law.
Raising the number of justices—say, to eleven—would not only allow for Ginsburg and Breyer to step down, if they so choose, but would also permit the appointment of younger justices who would be capable of preventing the present conservative bloc from returning American jurisprudence to the late 19th century.
This is, admittedly, no easy task. First the Democrats have to win the next election. Then, they have to get serious about remaking the nation’s highest court. The alternative is to hope that Roberts, Alito, Thomas, Gorsuch, and Kavanaugh experience a liberal epiphany akin to the “switch in time.”
It wasn’t long ago that we hoped the GOP would give Obama’s last Supreme Court pick, Merrick Garland, a hearing. Look where that got us. Banking on hope, unfortunately, is a fool’s errand.