Steve April 15, 2021
the-democrats’-court-packing-plan-doesn’t-make-any-sense

You can tell that House and Senate Democrats are serious about court-packing by the new bill’s name: the Judiciary Act of 2021. They didn’t burden it with an insufferable acronym, like the Judicial Upkeep, Democracy, Growth, and Expansion, or JUDGE, Act, or something pedantic like the Save Our Courts Act. By connecting it to previous Judiciary Acts that built and expanded the federal courts since 1789, Democrats are trying to suggest that there’s precedent and continuity to their proposal.

The Judiciary Act, which was announced by congressional Democrats on Thursday, is short and straightforward. It revises the section in federal law that says the Supreme Court has “a Chief Justice of the United States and eight associate justices” to say “a Chief Justice of the United States and twelve associate justices.” If it is enacted, President Joe Biden would be able to name four new justices to the high court. A 6–3 majority of Republican appointees would become a 7–6 majority of Democratic appointees. It’s easy to understand why some Democrats favor the bill. But their strategy to get it passed, let alone to solve the actual problems at hand, is not so clear.

Let’s start with the obvious: The Judiciary Act won’t become law. Speaker Nancy Pelosi told reporters on Thursday morning that she has “no plans” to bring the bill to the floor. And the House isn’t even the biggest problem. West Virginia Senator Joe Manchin, the Senate’s de facto swing vote, stated outright last November that he wouldn’t vote to expand the court. He is also opposed to scrapping the filibuster to pass any legislation, let alone this bill. And there is no chance that one Republican senator, let alone 10 of them, will vote for it.

Some of the bill’s sponsors, like Representatives Jerry Nadler and Hank Johnson, claim they are belatedly following the nineteenth-century tradition of adding a Supreme Court seat for every new federal circuit court of appeals. “Nine justices may have made sense in the nineteenth century when there were only nine circuits,” Nadler said in a statement, “and many of our most important federal laws—covering everything from civil rights to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court. But the logic behind having only nine justices is much weaker today, when there are 13 circuits.”

Others are unambiguous about their partisan goals. “Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Massachusetts Senator Ed Markey, one of the bill’s sponsors, said in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities. This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”

Note that Markey’s critique is aimed at his fellow Republican senators, not the Supreme Court itself. Maybe this is a conscious attempt to avoid the awkward questions that this bill raises about judicial independence. Maybe it’s an attempt to rally Democrats around court-packing by playing to their partisan fervor. In either event, Markey and some other proponents have made clear that the goal here isn’t a more stable Supreme Court, just a more Democratic one.

Democrats have often resisted this temptation in other areas. After GOP state lawmakers spent the last decade taking partisan gerrymandering to new heights, Democrats responded by proposing anti-gerrymandering reforms instead of embracing the right’s playbook. (Gerrymandering isn’t unique to red states, of course.) And while Trump and his allies tried to suppress the vote in traditionally Democratic constituencies in the last general election, Democrats fought to ensure that the pandemic wouldn’t hinder eligible Americans from voting, no matter which candidate they supported. That spirit of fair play isn’t found here.

To make matters worse, the Judiciary Act wouldn’t even fix the problems that its supporters decry. Does the bill try to change Senate rules to require an up-or-down vote on a president’s Supreme Court nominees? No. So a situation like the one Merrick Garland faced in 2016, when then–Majority Leader Mitch McConnell refused to hold a vote on the nominee, could happen again. Does the bill try to change Senate rules to prevent a Supreme Court nomination from reaching the floor within weeks of a presidential election? No. So a future Donald Trump and a future McConnell could still rush through a future Amy Coney Barrett before Election Day. This isn’t reform; it’s revenge. Oh, and there’d be nothing to stop Republicans from expanding the court again and putting everyone right back at square one.

The bill doesn’t even make tactical sense. If Democrats were responding to a disastrous ruling from the court—maybe on abortion rights or voting rights—they might have a stronger case for the public here. But they aren’t. Lawmakers didn’t even wait to see how the court’s conservative majority would rule on a pending challenge to the entire Affordable Care Act or on a dispute that could weaken the Voting Rights Act even further. And with Biden’s court-reform commission barely underway, it’s no surprise that some of the top Democrats on the Senate Judiciary Committee, like Dick Durbin and Sheldon Whitehouse, aren’t throwing their weight behind this bill.

At the risk of sounding like a broken record, there’s a better path forward here. As Markey and other court-packing proponents all but concede, the root problem isn’t really the Supreme Court itself. It’s the way that justices are chosen. I’ve previously argued that the best course for the nation would be a constitutional amendment. My proposal would also expand the court to 13 justices, with a chief justice and one associate justice for each of the 12 federal circuit courts of appeal with a geographic jurisdiction. Vacancies would be filled at random from the judges within that circuit. And instead of lifetime tenure, each associate justice would serve for 18 years and then return to their previous court.

My proposal would give no clear advantage to Democrats or Republicans. But it would remove the partisan gamesmanship that’s undermined the Supreme Court for decades and brought us to this moment. Constitutional law would no longer hinge on an individual justice’s age—like that of Justice Stephen Breyer, whom some liberals want to retire immediately—or which party happens to control the White House and the Senate at a certain time. “A constitutional amendment?” you might be thinking right now. “Isn’t that virtually impossible?” I’m not dumb enough to claim it would be easy. But since the Judiciary Act of 2021 also stands virtually no chance of being enacted, the difference between the two plans is on the merits. Either way, I’d rather back a good reform with a slim chance than a bad reform with slightly better odds.

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