Frustrated as they may be, Democrats’ notion about expanding the Supreme Court just to undo McConnell’s handiwork is a bad idea. To begin with, it’s premature. Fordham law professor Jed Shugerman argues that Democrats first “need to win the Senate to even make this a plausible debate." He adds, "Court packing plans risk a backlash, because — for the public — it’s not yet clear that it’s necessary.” He points out that court-packing from Democrats’ perspective wouldn’t be needed if Chief Justice John G. Roberts Jr. tries to steady the court by siding more often with the liberal justices, thereby preserving Supreme Court precedent and seeking “to avoid showdown.”
Moreover, court-packing isn’t really a permanent solution, since the two parties enter in a never-ending cycle of one-upmanship as each side seeks to expand the Supreme Court when its side is in power — a recipe for an unwieldy court and increased partisanship on the court.
Larry Tribe likewise argues against court-packing. “I’m not in favor of trying what FDR sought to do — and was rebuffed by the Democratic Senate for attempting," he tells me. "Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.” He adds, “Besides, proponents of partisan Court-packing haven’t proposed a realistic way of handling the transition to a 15-Justice Court.”
Shugerman has another idea: Require a 6-3 majority (at least) to strike down a statute. “There’s actually a long record of these proposals throughout American history, but oddly, there are fewer efforts now even though there are more 5-4 decisions,” he wrote in 2008. “You don’t need to amend the constitution to force the Court to follow this rule. I argue that Congress could legislate this rule under Article III as a ‘regulation’ of and ‘exception’ to the Court’s jurisdiction.” (Alternatively, the chief justice could simply say he will not vote to strike down any statute absent a 6-3 majority.) This would perhaps would reduce the frequency of Supreme Court decisions invalidating legislation produced by the political branches (e.g. campaign finance rules) without broader consensus. However, it could very well work to the disadvantage of minorities and individual rights. (Imagine Congress passing a bill to ban all abortions.)
Rather than go down the road of court-packing or supermajorities, Democrats would be wise to put all efforts into winning presidential and Senate elections. Tribe also has a more practical reform: Enact “nonrenewable 18-year terms for Supreme Court Justices, after which they’d serve on federal circuit courts except when needed to fill in for a recused sitting Justice.” He explains, “In my view, the Constitution guarantees life tenure as an Article III Federal Judge, not lifetime service on the Supreme Court. If I’m right about that, then only an Act of Congress would be needed, not an Amendment to the Constitution.”
Finally, there should be no objection to expanding the number of district and circuit court seats to handle the increased caseload of the federal courts. It would also have the effect of diluting the power of any single president to tip the federal bench too far in one direction.
In any event, we should be extremely wary of court-packing proponents. Especially for those claiming to be unifiers, a lack of restraint in this area — one of the most contentious of our time — would suggest that their consensus-building rhetoric is mere puffery.