History Offers Guide For Dealing with a Regressive Packed Court

September 23, 2020

Earlier this week, Sen. Mitt Romney (R-UT) announced that he would support moving forward to fill the Supreme Court seat left open by the death of Justice Ruth Bader Ginsburg, all but assuring the votes needed for an election-season confirmation to cement a conservative majority on the high court. Four years ago, Senate Republicans refused to even hold a vote on whether to seat Judge Merrick Garland on the Court in an election year (temporarily shrinking the bench size to eight), and then proceeded to appoint two far-right appointees.

As noted by political leaders from former Attorney General Eric Holder to Sen. Elizabeth Warren (D-MA), this string of events makes it more likely that policymakers in the next Congress will vote to rebalance the Court by expanding the number of judges. While some will paint this as radical, changing the number of justices on the Court is completely constitutional. In fact, Congress has done so on eight occasions in our nation’s history, and contemplated doing so other times still.

It’s a bug of our democracy that we lack mechanisms to reevaluate the appropriate shape of the judiciary on a recurring basis. Presidents change every four to eight years, and they reshape the executive branch. Every 10 years, the Census forces us to reallocate power in the House and Electoral College. And, while rarer these days, the admission of new states offers a way to reshape the Senate. Only the judicial branch, which passes judgment on the rest of government, lacks some regular automatic reevaluation. We currently have the same number of justices as we did before the Civil War, even though our population has grown over 1,700 percent. If the number of justices had kept pace with population growth, we’d have a Court of 77 justices, instead of the nine we have today.

The rigidity of the Court’s structure has real implications for our democracy at a moment of multiple crises. Today, 0.1 percent of the population owns as much wealth as 90 percent of the population, and the US has been unable to meaningfully respond to the climate crisis and COVID-19 pandemic. These challenges contribute to and are exacerbated by political inequalities. The Republican Party is on track by the end of 2020 to pick 67 percent of the life-tenured justices but only win the popular vote in 12 percent of the last eight elections. Further, 18 percent of the population picks a majority of the Senate. We are on track to return to Gilded Age levels of Senate malapportionment. No advanced democracy has governing institutions that are this inconsistent with majoritarianism. It is thus unsurprising that the failures of 2020 would prompt revisiting the shape of the Court.

But, as I noted, congressional action to change the number of judges has precedent in American history. Indeed, two of our most outstanding political leaders, Abraham Lincoln and Franklin Roosevelt, confronted similar challenges with a Court that stood in the way of social progress. Their actions can prove instructive for this moment. 

In Lincoln’s time, the Supreme Court was dominated by Southern interests that had just issued the notorious Dred Scott decision, which attempted to lock in slavery. Upon coming into office, Lincoln ensured that a backward-looking judiciary would not stand in the way of his governing agenda. He expanded the Court to 10 members, filled vacancies with justices opposed to the slave power (slavery and the states that supported it), and refused to enforce Dred Scott

Fast-forward to the 1930s. After generations of rising inequality and corporate power, the so-called Lochner-era Court was hostile to workers’ rights and regulations. This extended to Franklin Roosevelt’s first term, when the justices ruled against numerous New Deal policies. Unlike in Lincoln’s era, Roosevelt did not follow through with his threat to rebalance the Court by adding additional justices and diluting the vote of the anti-worker incumbents. However, merely placing the possibility on the table was a wake-up call for the justices—a majority of whom began to approve of New Deal policies. 

The conservative appointees of today pine for an even more distant past, wanting to rewind the clock decades if not centuries before the US had an administrative state. If the next Congress is serious about making significant structural change, they would be wise to follow Sen. Chuck Schumer’s (D-NY) lead and ensure that “nothing is off the table” if Sen. Mitch McConnell (R-KY) breaks his own rule and packs the Court in an election year.