Democrats Pitch Supreme Court Expansion -- A Bad Idea, But Maybe A Good Strategy?

This might actually work.

Court expansion is a popular idea among rank-and-file Democratic voters, which is a shame because it’s a bad one.

But, yet again, they’re locking in on the idea with a bill fronted by Senator Ed Markey and Representative Jerry Nadler that would expand the Court to 13 members. It’s an expansion that conveniently would transform the current 6-3 conservative majority into a 7-6 liberal to progressive majority. What are the odds?

Court expansion is a lot like getting into a boxing match with the heavyweight champ and thinking one punch below the belt should probably win it for you. You might cause momentary discomfort, but the champ is probably going to sterilize you. Expansion is a wretched solution to the Supreme Court’s current flaws, yet this current bill might mark the first time in a long while that talk of expansion isn’t the worst idea in the world.

To be sure, the Trump administration amounted to a gross abuse of constitutional order, managing to use a single, minority-elected term to fill two vacancies with three justices poised to serve for decades. Not that anything the Republicans did was “un”-constitutional so much as it spit on the document by cynically exploiting norms that the Framers never dreamed any American official would breach. If you think “refusing to fill a vacancy for a year and declaring to never do so if you lost the next election” is something James Madison would have abided, you’ve been getting high on FedSoc’s Chick-fil-A for too long.

Given the de facto Court packing of the prior administration and the fact that five of the current conservative justices entered their lifetime positions on the backs of presidents who first entered the office after losing popular elections, there’s a visceral desire to “fight fire with fire” or some similarly bellicose phrasing, to build a Court that more accurately reflects the lagging national polity as the Framers intended.

Oh, the disastrous places you’ll go if you do this! The most glaring of which is the immediate legitimacy crisis it kicks off. Adding justices is entirely constitutional, but fits into the same “not ‘un’-constitutional, but…” zone that threatening to never fill seats for four years does. It reads as a naked power grab and the new justices will face the same askance views that people rightly give Gorsuch now. Just multiplied by four. The plan also opens the door to retaliatory expansion the next time the wind shifts — or perhaps more accurately — the next time the Republicans lose an election and secure an absolute minority in Senate votes but parlay the antiquated structure of American government into both the White House and Senate majority anyway. It’s just a cycle of continuing delegitimization, but one where the Republicans have a medium- to long-term structural advantage. And that retaliatory expansion would come because, and this is the part that Democrats don’t understand, the Republican message thrives when the government is broken. The cynicism of a 21-20 Supreme Court majority in 2032 underscores their core message.

Even if Democrats can hold onto power long enough to prevent rapid justice inflation, it also sets up four seats on roughly the same cycle meaning some president 20 years down the road is going to get three or four extra nominations than they might otherwise because those people all die or retire at the same time. That’s a level of uncertainty that’s not worth introducing.

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The right answer, as laid out by Fix the Court, is staggered term limits that afford each presidential term two justices serving for 18 years on the active panel Supreme Court. Justices could retaining their status as federal judges and remain available to serve in case of recusals for life, but taking this step would ensure that the Court is a lagging representation of the electorate.

Fix the Court has long championed term limits as the way to remedy much of what’s wrong at the Supreme Court, and we’re not alone in thinking this, as large majorities of Democrats and Republicans support fixed terms over Court expansion.

I see it as a positive that members of Congress are asserting their Article I power and proposing structural changes, and it’s my belief that the more Court reforms are considered, the more term limits will emerge as the proposal that can bring people together and set the court on a path to renewed legitimacy.

That is the positive takeaway. And maybe this is the unique occasion to flex some muscle. Biden just appointed a commission to study Supreme Court reform that will be ultimately useless if left to its own devices. However, a hefty push toward expansion might push the commission — and more importantly Republicans — into seeing term limit proposals as a worthy compromise.

It’s the most popular proposal, the most fair proposal, and the only proposal designed to scale down the ludicrously high stakes of each subsequent nomination. Term limits also returns experience as a value to seek out in nominees as opposed to going all in on youth in an effort to extend the dead hand of failed and unpopular presidencies for decades. Determine the future of the Court at the ballot box instead of through a combination of actuarial life expectancy tables and procedural shenanigans.

Hopefully, this bid will end up a bargaining chip. Because the long-term integrity of the federal judiciary relies on reform. Wild opinions from non-qualified judges rubber-stamped through a shadow docket by justices installed by presidents who lose popular elections will only hold up so long.

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Democrats to introduce legislation to expand Supreme Court [Politico]

Earlier: Joe Biden Announces Supreme Court Reform Commission


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.