Sens. Kamala D. Harris, Elizabeth Warren, and Kirsten Gillibrand, former congressman Beto O’Rourke, and South Bend, Ind., Mayor Pete Buttigieg have all expressed at least an openness to the idea, and the rest are being pushed by liberal activists to consider it. There’s even an organization called Pack the Courts that is urging Democrats to expand the court by four seats (though two is the number more often mentioned).
Not everyone is on board, however. To see the kind of reaction the idea can get, James Hohmann reports from Concord, N.H., the colorful response one senator and potential candidate had to the idea:
Sen. Michael Bennet (D-Colo.) slammed his head on the table four times when I asked what he thought about other Democratic presidential contenders embracing the idea of expanding the Supreme Court.“Having seen up close just how cynical and how vicious the tea party guys and the Freedom Caucus guys and Mitch McConnell have been, the last thing I want to do is be those guys,” he said during an interview at a coffee shop here the Friday night before last. “What I want to do is beat these guys so that we can begin to govern again.”
That’s a legitimate argument, which I’ll address in a moment. But it’s important to keep in mind that there is one and only one reason why we’re discussing this at all: Merrick Garland.
It's been three years since Antonin Scalia died and President Barack Obama, looking for a justice Republicans would have a hard time objecting to, chose Garland, a mild-mannered moderate whom some Republican senators had praised in the past. Sen. Orrin Hatch had called Garland "a consensus nominee," promising that "I will do my best to help him get" confirmation votes.
But Majority Leader Mitch McConnell, with the support of almost every Republican (including Hatch), simply refused to allow Garland either a hearing or a vote. True to his bottomless cynicism, McConnell calls his decision to hold open the seat until it could be filled by a Republican president one of the proudest moments of his career.
It was one of the most despicable official acts either party has undertaken in decades. And while McConnell still no doubt giggles in joy every time he thinks of it, it continues to fill Democrats with rage.
In order to rebalance the scales, many believe, the next Democratic president should be given two extra seats to fill, because, had Garland been seated, there would have been a 5-to-4 liberal majority, and instead there’s a 5-to-4 conservative majority. It should be noted that the size of the court is not specified by the Constitution, and in the country’s early decades it bounced around between six and 10 justices, sometimes changing from one administration to the next. It has stayed at nine since 1868, but all that’s necessary to change it is for Congress to pass a law doing so that the president signs.
The argument that Democrats shouldn't stoop to Republicans' level is not without some merit. If you believe that norms of reasonable behavior have inherent value, then you should uphold them even if there's sometimes a cost to doing so. But that raises the question: When is the cost too high?
We may find out before long. Consider the following scenario: Democrats take back the White House and the Senate in 2020. Then they eliminate the legislative filibuster, preventing the Republican minority from stymieing policy changes the majority passes. Then they pass the agenda that the new president ran on, including health-care reform, a $15 minimum wage, a Green New Deal and new guarantees of voting rights.
Then the five conservative justices on the Supreme Court strike it all down.
After, that is, they’re done undoing Roe v. Wade, eviscerating collective bargaining rights, and who knows what else. That is not at all an outlandish scenario. We could very easily see a president and Congress elected by a majority of the public thwarted over and over again by five justices.
At that point, expanding the court might look less like a radical piece of political hardball and more like a necessary attempt to restore something resembling majority rule in America. After all, right now we have an extremely conservative court that owes its majority to the fact that McConnell refused to allow Obama to fulfill his constitutional responsibility, and then a president who got fewer votes than his opponent filled two seats. And don't forget that McConnell is the majority and not minority leader, and so had the ability to do that in the first place, despite the fact that millions more Americans voted for Democrats rather than Republicans to represent them in the Senate.
There is one powerful counter-argument, which is that if Democrats expand the court when they have control of Congress and the White House, Republicans will just do the same the next time they get the chance, and then we'd be locked in an endless tit-for-tat. One thing we know for sure is that Republicans won't say, "Well played, folks — you got us that time, so let's just keep things the way they are now from this point on."
But the mere fact that Democratic presidential candidates are even talking about this shows that the party — not everyone in it, but a healthy portion of its members and elected representatives — is simply fed up with getting walked all over for being noble. As I’ve said before, when it came to exploiting loopholes, stomping all over norms and fighting dirty, for some time Republicans have been the party of “Yes we can” while Democrats have been the party of “Maybe we shouldn’t.” But that may be changing.