Ian Ayres and John Fabian Witt are professors at Yale Law School.
Democrats this summer are wringing their hands over whether to oppose Judge Brett M. Kavanaugh’s nomination to the Supreme Court. Liberal candidates and organizations are gearing up to oppose him, and for understandable reasons: His confirmation would shift the court decisively to the right. But with Republican control of the Senate, Kavanaugh’s confirmation is highly likely. From certain liberal perspectives, Kavanaugh may even be preferable to the alternatives, who would almost certainly be confirmed if he isn’t. A generational transformation in the court is in the offing. Senate Minority Leader Charles E. Schumer (D-N.Y.) and company may soon need a bold Plan B. Here’s one: court balancing.
Schumer and his House counterpart, Nancy Pelosi (D-Calif.), should announce that Democrats intend to pursue a balancing of the Supreme Court if Democrats retake control of Congress and the presidency in 2020. Nothing in the Constitution requires nine justices on the court, as there are today. The court originally had six seats. It expanded and contracted in the first half of the 19th century, then settled on nine. It has remained there since 1869, partly as a political norm and partly to preserve competitive equilibrium.
Both political parties understand that bald attempts to dominate the court by adding seats would be met with a tit-for-tat response by the other party when in power. The specter of a hyper-political court of ever-increasing numbers reeks of authoritarian states such as Hungary and Poland. It appeals to few. That is why “court packing” is one of the most controversial threads in the history of American politics. But court balancing by adding two seats at this moment in history would come with its own built-in constraint. By connecting the proposal to the constitutional wound of the Senate’s failing to consider the nomination of Merrick Garland in 2016, Democrats can apply crampons to stop the partisan slide to ever more justices.
At crucial moments in U.S. politics, parties have acted to change the size of the Supreme Court. Often the tactic was a political power play. But sometimes it was undertaken for the good of the country, as during the Civil War, when the Republican Congress in 1863 added a seat to the court in part to protect the success of the war effort against formidable legal challenges.
The Democrats’ court-balancing proposal for 2020 should commit the party to expanding the size of the Supreme Court by appointing two new federal judges who, by statute, would be designated to sit on the court for 18 years; thereafter, the constitutionally required life tenure would be served in lower federal courts. If Democrats took control of Congress and the presidency in 2020, the new administration would effectively have two Supreme Court slots to fill immediately. The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself.
The balancing plan would be a temporary intervention tailored to rectify the Senate’s prior dereliction in the Garland nomination. It would not radically expand the Supreme Court, but it would place Garland, for a limited time, in the likely swing vote position he would have occupied had Senate Republicans permitted a confirmation vote in 2016. After 18 years, the statutory designation of these two judges to hear Supreme Court cases would end and the court would revert to nine justices.
By proposing the court balancing specifically to address the Garland travesty, Democrats would have a principled reason, subject to the American electorate’s approval, for altering the size of the court. The GOP could choose to run on its own platform of court expansion. The deciders would be the American people.
There are other proposals Democrats ought to consider, too, such as ending the lifetime terms for Supreme Court justices. A statute might designate all future Supreme Court seats as 18-year terms, with justices sitting on the court by designation, followed by life tenure on the lower federal bench. The constitutionality of such a move is disputed, but it would be worth trying. The vagaries of justices’ deaths and retirements should not throw American democracy into tumult. Even better, Congress should endorse a constitutional amendment (already supported by many prominent constitutional lawyers) establishing term limits for all future justices. In the meantime, court rebalancing is a strategy for mobilizing Democrats without misleading the party’s base, without triggering an uncontrolled race to increase the court’s size — and without waving a white flag of surrender.