The Washington PostDemocracy Dies in Darkness

Democrats must consider court-packing when they regain power. It’s the only way to save democracy.

Saving the court's legitimacy requires breaking some norms.

Brett Kavanaugh appears before the Senate Judiciary Committee in April 2004. (AP)

Justice Anthony Kennedy’s retirement from the Supreme Court, and President Trump’s nomination of Brett Kavanaugh to succeed him, is the doomsday scenario liberals feared when Senate Republicans thwarted the appointment of Merrick Garland in 2016: The GOP’s brazen act of democratic sabotage will almost certainly deliver the high court to the far right for a generation. In the years ahead, the court will probably further erode reproductive rights, gay rights and voting rights, ushering in the darkest era in American history since the post-Reconstruction period.

Sounds hysterical, right? After all, Democrats will get their chance at reversing the court’s majority when they get back in power, as early as 2021. Except court appointments don’t work like elections. The remaining conservatives on the court are young — Clarence Thomas is the oldest at 70 — and Trump is insistent on naming young justices. It is possible that a two-term Democratic president could serve from 2021 to 2029 without being able to replace a single Republican-appointed justice.

That grim reality is leading many on the left to contemplate radical ideas, including an idea considered and discarded 80 years ago: court-packing. The idea of court-packing — adding extra justices to the Supreme Court to change its ideological makeup — causes most Americans to blanch. But if done right, it would actually offer a crucial avenue for safeguarding American democracy.

Court-packing has a dim reputation in American politics, largely because of a flawed understanding about President Franklin Roosevelt’s 1937 effort to pass a law authorizing the president to add a justice to the Supreme Court for every existing justice over the age of 70. His proposed bill would have allowed Roosevelt to add six justices to the court immediately, instantly transforming it.

Roosevelt’s motives stemmed from the way that the conservative-dominated court had thwarted his agenda — striking down several key New Deal measures during Roosevelt’s first term — despite historically large majorities in both houses of Congress and overwhelming popular support.

Roosevelt was frustrated by the lack of a vacancy — at the time he was the only president to have served a full term without getting to appoint a justice — that would allow him to tip the court’s balance. Worst of all was the looming prospect of his signature Social Security measure being swatted down by the court.

Rather than bide his time, Roosevelt hatched a secret plan to enlarge the court.

The usual story of what happened next goes something like this: Roosevelt supporters in the overwhelmingly Democratic Congress revolted and the court-packing scheme died. The plan was made redundant by the “switch in time that saved nine,” whereby a key swing justice began approving liberal measures, including a Washington state minimum-wage law identical to a New York statute the court had struck down just the year before.

Many scholars dispute this account. Some of the court’s votes for that term had already been taken internally by the time Roosevelt made his announcement in February, meaning the scheme had little impact on their outcome. But the sense that Roosevelt’s gambit was ultimately unnecessary only adds to the widespread perception that he overreached, caused a constitutional crisis, stained his legacy and reduced his political capital.

Yet this familiar story obscures the real reason court-packing failed: Roosevelt’s refusal to compromise.

When Roosevelt first floated his plan, some potential allies balked at the ageist component of his proposal, while others worried about the sheer scale of the transformation. As scholar Barry Cushman has argued, Roosevelt repeatedly rejected entreaties from his backers to tone down the proposal. After he unveiled it, Vice President John Nance Garner and Democratic congressional leaders offered a compromise plan that would add two or three justices to the court. The president flatly refused.

Even after the court began upholding New Deal reforms, Senate Majority Leader Joe Robinson told the president’s adviser Joe Keenan that he could get the president “a couple of extra justices tomorrow” if Roosevelt would back off his maximalist plan. Roosevelt still resisted. The source of his defeat was not reflexive horror at the concept of court-packing per se — something that might render it a nonstarter forevermore — but Roosevelt’s inability to accept a less ambitious version.

Should Democrats gain unified control of government in 2021, they ought to consider this more complete story of court-packing. Before contemplating such unprecedented action, Democrats should offer Republicans a truce in the decades-long judicial wars: the illegitimate Neil Gorsuch resigns, and both parties support a constitutional amendment eliminating lifetime tenure on the Supreme Court, capping service at 18 years.

Routinizing court appointments would eliminate their zero-sum character and ensure all presidents get to influence the future of jurisprudence, rather than relying on the randomness of retirements and deaths. Jimmy Carter didn’t get to fill a single seat on the Supreme Court in his four years in office — Donald Trump will soon have two in less than half a term. That unfairness, if left unaddressed, will eventually destroy the legitimacy of the institution itself.

That’s why, if the offer falls flat, Democrats should move to implement exactly the sort of narrow court-packing plan that Roosevelt refused to accept. While unprecedented, court packing would be a clearly constitutional move by an elected majority. After all, previous presidents and Congresses have changed the size of the court.

It might sound drastic, part of the orgy of norm-violation that has defined the past decade. But it would help reverse something even more threatening to democracy: indefinite minority rule.

Since 1992, Democrats have won 30 million more votes for the U.S. Senate than Republicans. They have won the popular vote in six of seven presidential elections. But the electoral college, the small-state bias of the Senate and the GOP’s potential dominance of the court have thwarted the will of the people.

In the past 50 years, including Trump’s appointment of Kennedy’s successor, Republicans have made 15 of the 19 Supreme Court appointments — almost 79 percent — despite controlling the presidency only 62 percent of the time. With Democrats and Republicans increasingly appointing judges with radically different judicial philosophies, the Supreme Court must better reflect the outcome of presidential elections or risk a monumental public backlash. Only the accidental appointment of liberals by Richard Nixon, Gerald Ford and George H.W. Bush prevented a court crisis from arriving far earlier.

This disparity has left the Roberts court in a position to shatter the national consensus on, among other things, marriage equality and a woman’s right to choose, both of which enjoy 2-to-1 popular support. Overturning either precedent would plunge the country into a dangerous crisis with no easy way out. This new, hard-right majority might go even further and dismantle the legal foundations of minimum-wage laws, or (theoretically) overturn a Medicare-for-all statute in a post-Trump Democratic administration.

With majority will so regularly flouted, the public might eventually demand an end to judicial review altogether.

The country can ill-afford a Supreme Court thwarting the public’s will indefinitely. Yet Republicans seem bent on pressing their ideological advantage with absolutely no consideration given to the possibility of appointing a consensus candidate to the court. For that, they must, and will, pay a steep price.