But many of the worst outcomes from a partisanized Supreme Court are already occurring. Major decisions break along party lines. The current 6-3 conservative majority essentially acts as an arm of the Republican Party, frequently overturning laws and policies adopted by blue states and Democratic presidents, defending those adopted by GOP presidents and red states, and issuing rulings on voting rights and gerrymandering that clearly benefit the GOP. And one party has already fiddled with that supposedly sacrosanct number nine: The Republicans used their control of the Senate to temporarily turn the court into an eight-member body after Justice Antonin Scalia died in 2016, but rushed to make sure it remained at nine in 2020, when Ruth Bader Ginsburg passed away. The majority may not always side with the Republicans (it upheld Obamacare and rejected the Trump election lawsuits), but it’s clearly on Team Red.
A lot of people agree that the current court is hyperpartisan but see alternatives to addressing that: barring the court from taking on certain kinds of cases or restricting its power to make sweeping rulings; limiting its ability to make law via the so-called shadow docket; creating term limits for the justices. But such reforms require legislation enacted by Democrats — which the current court will be eager to strike down as unconstitutional. And if the conservative justices don’t outright invalidate such reforms, Republicans and their court allies can be counted on to find ways to render them toothless. If you think of at least five of the current justices as more Republican partisans than legal experts with conservative views (all the GOP appointees except for Chief Justice John G. Roberts Jr.), then you will be skeptical of any piecemeal Democratic effort to reform the court.
The Democrats need to act decisively — by adding four justices and giving themselves a majority. There is plenty of precedent for adding justices to the court. A 7-6 Democratic court would push American law in a pro-democracy direction that, because the GOP is moving in an anti-democratic direction, will unfortunately also seem pro-Democratic Party. Such a court would make it harder to enact restrictions on voting or gerrymander in a way that denies people the ability to cast meaningful votes. It would no doubt also rule in pro-Democratic ways that aren’t really about core democratic values — by, for example, upholding progressive economic policies such as the eviction ban the current court invalidated.
It’s true that when the Republicans next gain control of the Senate and the presidency, they would likely add more justices to wrest back control of the court. Yes. Exactly. I would personally disagree with the rulings produced by such a court. But it wouldn’t mean that the court was becoming more partisan. Rather, adding justices would serve as an open acknowledgment that the court already is partisan. And it would allow both parties to benefit from that partisanship, instead of just one — the GOP — as things stand right now.
Again, adding justices and solidifying the court as a partisan entity is a terrible solution; there’s a reason no one has tried this since Franklin D. Roosevelt. I never imagined I would advocate it. It might not have been necessary if the Republicans had allowed Scalia to be replaced by Obama nominee Merrick Garland, or followed their own Scalia precedent and not replaced Ginsburg with Amy Coney Barrett, or if Trump’s three appointments had been in the mold of the more moderate Roberts. But none of that happened. So we now have a Supreme Court of five Republican partisans bent on using the most flimsy of pretexts to protect and defend their party as it moves in an anti-democratic and racist direction.
Adding justices is a radical solution — but it’s the only one.
I fully understand the odds of such legislation passing this Congress are long, by the way. But we shouldn’t pin that simply on wobbly Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona. President Biden and fewer than 50 of the 220 House Democrats don’t support adding justices to the court, either. I would assume this reflects nervousness about the politics of this issue — but a Supreme Court issuing rulings defending voting, LGBTQ and abortion rights, which are very popular, is itself likely to be popular with voters.
After this week, inaction is no longer tenable. Democratic politicians should push as strongly as possible to add justices. And if they aren’t willing to do that, they should admit they aren’t willing to stand up for abortion rights, voting rights and other vital causes when it means doing something hard and controversial — such as adding justices to rein in this out-of-control court.