Plenty of ink has been spilled about whether Brett M. Kavanaugh’s confirmation will politicize the Supreme Court in new ways. But the biggest question may not be what the court does now, but instead what Congress’s next step is. And given the trajectory, there’s a high likelihood this process will further devolve into partisan politics and gamesmanship. The stakes are too high, the emotion is too raw, and the sense of grievance is too real on both sides.
It’s not unreasonable to think the destination here is packing the court.
Court-packing has come up occasionally throughout the years as a workaround for one side or the other to wage something of a hostile takeover of the court. Rather than waiting for the right justices to retire or die when the right president is in office, the theory goes, a party can just expand the court enough to install the requisite justices and tip the scales to its side. Enacting term limits for justices would require a constitutional amendment and take years to pan out; packing the court is quicker and requires only a regular old act of Congress.
For obvious reasons, the idea has gained some new currency with liberals, for whom it could help in taking a 5-4 conservative court and flipping it to a 6-5 liberal one. Michael Avenatti has said it should be a litmus-test issue for any 2020 Democratic presidential candidate.
The idea hasn’t yet caught on with Democratic leaders. But there are reasons to believe they might one day entertain it.
Court-packing hasn’t been seriously attempted since 1937, when Franklin D. Roosevelt pushed to expand the anti-New Deal court by as many as six justices to turn it into a pro-New Deal court. The effort went nowhere, but scholars generally say it had the beneficial effect of pushing the existing court in a more pro-New Deal direction. Before that, there were seven instances of adding or subtracting justices in the 1800s, according to a 1968 Baylor Law Review article by J.R. Saylor — all for reasons of political expediency for the party in power.
Which brings us to today. We’re arguably in an environment in which this rather drastic and little-used step could be construed as viable or even necessary. The only things standing in the way of such an effort are basic math and a fear of unintended consequences. And the barriers on both counts are crumbling.
On the first count, Democrats would not only have to regain both chambers of Congress and the presidency, but they would also need to get 60 votes in the Senate to overcome a filibuster. That same filibuster, though, has been severely scaled back in recent years (for reasons we’ll get to) and could simply be eliminated.
The bigger hurdle would seem to be the consequences. Included under this umbrella are the arguments that this could lead to some kind of unraveling of U.S. government (by turning the judiciary into effectively another political branch) or even just backfire politically (by setting a precedent that the other side later exploits). On that count, it’s possible that the politics of Supreme Court vacancies have devolved so significantly that Democrats — or even Republicans — might decide it’s worth a shot.
A quick recap: A Republican blockade of President Barack Obama’s judicial nominees in the early 2010s led the Democratic-controlled Senate in 2013 to invoke the “nuclear option,” getting rid of the filibuster for non-Supreme Court nominees. By 2016, Obama nominated Merrick Garland to the Supreme Court, and Republicans wouldn’t even hold a hearing — reasoning that it should wait for the election of a new president. By 2017, a Democratic Party that was perhaps legitimately aggrieved by the Garland situation and Donald Trump’s popular-vote-losing win in the presidential election funneled that frustration into a doomed filibuster of Trump’s nomination of Neil M. Gorsuch. They did this despite pretty much everyone knowing that Republicans would just go nuclear for Supreme Court nominees like Democrats had for other nominees, and they did. Then came the events of the past few weeks, culminating in Kavanaugh’s rather ugly 50-vote ascension to the Supreme Court — in which even he admitted fault for his conduct.
The Kavanaugh hearings laid bare what this process has really come to be about, and it decidedly is not sober, nonpartisan review of the law. The new justice got to the court by savaging an entire political party for allegedly waging an elaborate conspiracy against him. From there, it’s up to both sides to tone it down in the next battle, but neither is going to do so voluntarily. Any detente will be fragile, at best.
Then we layer on top of that the dire straits Democrats face on the Supreme Court. Not only do they face what’s probably the clearest-cut conservative majority on the Supreme Court since the Great Depression, but they also have no clear path back. The oldest justices come from the court’s liberal wing, meaning those are most likely to be the next vacancies. It could be a very long time before we have a Democratic president with a Democratic Senate who is able to nominate a justice who could tilt the court toward the liberals. (They also face difficult math in winning back the Senate, which could tempt them to try to pack the court whenever they get the chance.)
That’s a near-perfect storm of motivation, desperation and sense of righteousness. What’s missing thus far is the means to actually try to pack the court.