Just as a world without the filibuster would end up empowering Republicans to ride roughshod over Democrats, an expanded Supreme Court would end up hurting its proponents by unleashing subsequent waves of retaliation. Expanding the court by four justices would solve the immediate problem for liberals, replacing a 6-to-3 conservative majority with a 7-to-6 liberal one. But why would a Republican congressional majority — when one is, inevitably, in power — let that stand. Where would the expansion stop?
Indeed, it’s far harder to make the case for sticking with the filibuster than for living with the current nine-justice court. The counter-majoritarian downside of the filibuster is embedded and unchanging. By contrast, there is nothing inherently wrong or frustrating about a nine-justice court — just this nine-justice court. Nine isn’t etched in stone, or written in the Constitution, but it’s a workable number that has passed the test of history.
And, unlike the conundrum over how to fix the filibuster, there is an alternative solution for the court that would be more effective, and fair, over time than expansion.
Halfway measures with the filibuster — in particular, making it more onerous to block legislation by forcing those who wage a filibuster to be present on the Senate floor — are worth trying, but ultimately won’t solve the problem of letting a determined minority block the will of the majority.
But imposing term limits for justices, although more difficult to implement than a change in Senate rules, would, over time, create a court that is better balanced ideologically and more in sync with the public mood. There may be methods short of a constitutional amendment to achieve term limits, such as having justices pledge to serve specific terms or assigning them to other federal courts after a set period.
So when Brian Fallon of Demand Justice, which has been leading the charge for court expansion, calls that “the only way to restore balance to the court and protect our democracy,” he’s wrong.
A pause here to say to Fallon and his allies: I feel your fury. The current court has been double-packed by Republicans — first by the GOP’s refusal to let President Barack Obama fill the vacancy left by the death of Justice Antonin Scalia 11 months before Obama’s term expired; second by the insistence on pushing through a replacement for Justice Ruth Bader Ginsburg when she died less than seven weeks before the 2020 election.
So it is hard to swallow Republicans’ professions of horror at Democratic efforts to game a system that they already manipulated to their advantage. For Senate Republican Leader Mitch McConnell (R-Ky.) to open his floor speech Thursday on the expansion proposal by claiming that “time and again, prominent Democrats show that they’re no longer content to work within the ground rules and norms of our institutions” is particularly rich. Where were ground rules and norms when Merrick Garland was nominated?
Some of the arguments Democrats presented for expanding the court in the name of good government were laughable. “Nine justices may have made sense in the nineteenth century when there were only nine circuits … and so many of our most important federal laws — covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime — simply did not exist, and did not require adjudication by the Supreme Court,” said House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.). “But the logic behind having only nine justices is much weaker today, when there are 13 circuits. … Thirteen justices for thirteen circuits is a sensible progression.”
The more honest argument for court expansion is redress. “Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” said Sen. Edward J. Markey (D-Mass.). Expanding the number of justices “will restore the court’s balance and public standing and begin to repair the damage done to our judiciary and democracy.”
Fact check: half true. The court’s balance would be restored — but at what institutional cost, and for how long?