Adding Four Justices to the Supreme Court is a Bad Idea
In April, a small group of Democrats introduced legislation in Congress to increase the size of the Supreme Court from 9 to 13, an idea that has been pushed for the past year by a number of organizations.
It is a bad idea. For political reasons.
I argue political reasons, because the reasons advanced by the sponsors of the legislation as well as supporting groups, are political. Mostly some version of; the Republicans haven’t played fair and we have to get even.
“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Senator Edward J. Markey, Democrat of Massachusetts, the lead Senate sponsor, said on introducing the legislation.
Particularly frustrating to those supporting the bill was the stonewalling by Senate Republicans of President Obama’s nomination of Merrick Garland followed four years later by the fast tracking of Amy Coney Barrett’s confirmation after the death of Ruth Bader Ginsburg. That combination resulted in increasing the conservative majority on the Court by two. Four new justices are needed to “restore balance” to the Court.
The political goal of putting “our” kind of judges in the majority is clear in the press release accompanying the introduction. One doesn’t have to be a mind reader to get the message.
“The legislation expands the Court to restore balance, integrity and independence to it.”
“Our democracy is hanging by a thread. And the far-right majority on the U.S. Supreme Court is cutting it.”
“We must seize this opportunity to increase its size by four seats and appoint honorable justices committed to serving the people.”
“Expanding the number of justices and seizing the opportunity to nominate diverse, forward-thinking jurists will democratize the highest court.”
Why is it politically a bad idea?
It looks like what it is: a partisan power play. As was the Republican breaking of norms to get two additional justices. But the two are not comparable. The slow walking of Garland and fast tracking of Barrett had to do with internal Senate functioning and procedures. Norms were broken but no rules were changed. For most people, if they paid attention at all, it was politics as usual. What Democrats would have done, if they had the opportunity.
Adding four new members to the Supreme Court, however, would be a big deal. It would be the major issue during the whole time it was being seriously considered. We still remember from our high school history classes the last effort to “pack” the Court by President Franklin Delano Roosevelt, back in the 1930s, almost 100 years ago. It didn’t go well.
With Roosevelt the motivation to add members to the Court came from the decisions by the justices to rule unconstitutional some of the President’s programs to combat the depression and reduce unemployment which had reached 25 percent. In contrast, there has been no recent decision by the Supreme Court that has stirred public opinion in any significant way. The primary motivation today is how Republicans manipulated the appointment process. It is a political fight between two political parties and it will be seen as just that.
The claim, they did it first, won’t fly. “He hit me first” didn’t work with our mothers, doesn’t work with basketball referees, and the voters won’t buy it either, particularly when the hit back is so out of proportion. Packing the Court would be looked on by voters as overreach.
Despite increasing cynicism about politics and government generally, there remains some vestige among voters of the ideal of an impartial judiciary. We may not believe that judges are always impartial, but we want them to be. The idea of “balancing” the court with new appointees who have a different bias from those who are already there runs counter to that ideal of democratic government. We are still influenced by what we were taught in government class. Our imagination of what the Supreme Court should be has faded, but still exists.
We also hold in the back of our minds the history of other countries where one of the first moves of would-be autocrats is to extend control over the judiciary. The recent move by the ruling party in Mexico to extend the term of the Supreme Court’s chief justice by two years, a relatively minor change compared to adding four justices, is seen as a power grab and arguably unconstitutional. As in other countries, the effort is getting attention and creating angst.
The protection of democratic ideals is an issue that will change votes. Arguments for those ideals are inherently more believable than any possible response to a charge of trying to rig the system.
In politics, the voter is who matters. For the most part, voters don’t follow, and don’t care, about the back and forth, the gamesmanship. How many remember the story of Merrick Garland or Amy Coney Barrett, or think it is important that 15 of the last 19 justices were appointed by Republican presidents, or that a majority of the current justices were appointed by presidents who won with less than a majority of the popular vote? These are all esoteric debating points made by supporters, written about by pundits, and quickly forgotten. But adding four justices, is the stuff of bar talk where votes get decided.
Democrats would do well to forgo the partisan battles with Republicans, the getting even. Instead, concentrate on winning the hearts and minds of voters. The mind set changes from what can we do to hurt the Republicans, to what can we do to help people.
Our focus should be on building a continuing majority. Our focus should be on accomplishing those tasks that win the approval of voters. We gain the power to accomplish our goals and keep that power not by manipulating the system, but by increasing our support among voters.
The New Deal proposed by FDR and passed by a Democratic Congress started putting people back to work and was hugely popular. For 28 of the next 36 years, a Democrat occupied the White House. For 32 of those years Democrats controlled both House and Senate. The only Republican president during that time was Dwight Eisenhower who led the Allied troops in Europe to victory in World War II.
Competence matters. Accomplishment sells.
When I first started running for elected office in the late 1960s, the stump speeches of Democratic candidates still recounted how FDR, the New Deal, and Democrats had improved the everyday lives of Americans.
Today we are an evenly divided nation. The Senate is 50-50. The House has a six vote Democratic majority. Biden won the presidency by a total margin of 43,000 votes in the three states of Wisconsin, Arizona and Georgia.
A change in their vote by 3 to 4 percent of voters in 2022 and 2024 would be a landslide victory or a landslide defeat. Packing the Court appeals only to the most passionate partisans. It will not add votes. There is no argument that will persuade anyone who is not already persuaded. It can result only in losing votes. Votes that cannot afford to be lost.
Packing the Court is a bad idea. And worse politics.
Douglas Kane is the author of "Our Politics: Reflections on Political Life" published in 2019 by Southern Illinois University Press
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