Progressives responding to Supreme Court Justice Anthony Kennedy’s retirement with a proposal for court packing might argue that there’s nothing especially unusual about the proposal. The historian Jean Edward Smith has referred to packing, with some exaggeration, as a “hallowed tradition” in American politics. It has occurred a number of times, from the early days of the republic through, most famously, the administration of Franklin Delano Roosevelt. Not too long after the election of Donald Trump, the law professor Steven Calabresi and his co-author Shams Hirji advanced just this suggestion as a means of reversing the Obama administration’s achievements and policies.
In fact, many Democrats and progressives argue that the Republicans have already embarked on a kind of court-packing scheme. The Senate Republican majority took a seat away from the Obama presidency—namely that for which Judge Merrick Garland was nominated. So with Justice Antonin Scalia’s death and Kennedy’s retirement, the Garland seat hijacking has given them two seats to fill. Call it reverse packing, but it’s a close cousin to packing itself. Progressives pursuing a packing strategy would be merely accepting that the game is on and that if these are the rules, they should play by them. This answers, to some degree, the complaint that a Democratic move toward court packing invites pure tit-for-tat or initiates a cycle of constitutional violence: The Republicans have already made the first move.
It would still be a mistake.
The question progressives must answer in this and other cases is whether the alarms rightly sounded about Trump’s threat to democracy must be understood entirely or mostly in terms of democracy as outcomes, or also democracy as institutions. Of course, if what is feared is a threat to outcomes, then packing the Court is one among a number of rational responses. But if it is a threat to institutions, then its dangers are those prominently featured in the criticisms of the Trump presidency: contempt for institutions, an entirely instrumental view of law, and the hostility to reasoned debate and disagreement that all violate crucial norms for the conduct of vibrant democratic politics. As Trump displays his lack of understanding and respect for institutions, and progressives fear the costs to democracy in this second sense, the court-packing proposal seems especially ill-considered. It seems that Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.
Democrats and progressives concerned about a rightward drift or even lunge in the Court’s jurisprudence will wonder where this line of argument leaves them. Does it mean they have to tolerate a generation or more with a Court stacked with Trump nominees and, as some may fear, ready to run roughshod over precedent to achieve a triumph of conservative judicial supremacy? No, but the question is whether the defense against any such possibility would take the form of bona fide institutional reform, or merely result in additional and perhaps irreparable institutional damage and political fallout.
Note, first, what court packing is not. It is not reform: It is not a response to concerns about the Court’s wider and controversial role in resolving political and policy conflicts. In other words, there is no institutional dimension to a packing maneuver. To pack the Court—to stuff the judicial ballot box—does not serve to strengthen the institution, even if it maximizes the chances of winning particular cases.
FDR understood, but surprisingly did not deal deftly with, the difference between an institutional reform and a political power play. He clothed his court-packing proposal as the Judicial Reorganization Act, designed to achieve efficiency in an overburdened court system. His attorney general, Homer Cummings, told a national radio audience that the proposal’s primary purpose was to alleviate “delays and congestion in the courts.” In other words, his administration attempted to cast the proposal as an institutional reform, when everyone understood that it was nothing of the sort. The Calabresi proposal to “enlarge” the courts after Trump’s election was, in part, similarly and disingenuously justified by workload and efficiency considerations.
In the current situation, progressives may be willing to dispense with the institutional argument and go straight to the point—they don’t want the Court dominated by a hard-right conservative majority for years to come. They should factor backlash into their calculation of costs and benefits. As FDR discovered, the move may well go over very badly with the electorate. Even in a period of intense distrust of institutions, and perhaps even because of that distrust, a dramatic escalation in the politicizing of institutions would trigger strong opposition.
The cost could be high. In his review of the history of the Roosevelt court-packing episode, law professor Richard Pildes has argued that the failed initiative damaged the New Deal coalition beyond repair, drastically weakening Roosevelt’s capacity in the following years to implement his domestic-reform program. He concludes that “one can read the 1937 experience as suggesting that, for better or worse, judicial independence and the authority of the Court have become so entrenched … that even the most popular politicians play with fire” with court packing or a similar power play.
More profound is the extent to which court packing would sap the Supreme Court of legitimacy. A packed Court might render decisions, or block outcomes, to the satisfaction of the proposal’s supporters, but its actions on the controversial issues would carry less authority, with unpredictable consequences for the rule of law. Court packing would only aid Donald Trump and politicians of his ilk in legitimizing attacks on institutions that are unresponsive to political preference (or, in Trump’s case, personal whim or will). The Court seems to have rebounded from the 30-year low in trust it experienced in 2015, but the Court is clearly no longer immune to the decline in confidence other institutions have experienced. Its recovery of public confidence will not survive the appearance that, in the words of Jeff Shesol, the author of a major work on FDR’s court-packing venture, it has become “territory to be seized and held by whatever means.”
This line of argument frustrates progressives who believe that it condemns them to allowing Republicans to play by one set of rules while they are expected to play by another. Merrick Garland is sure to come up in the conversation. It seems important in understanding this unhappy experience to separate out different objections to Senate Majority Leader Mitch McConnell’s behavior.
It was not a violation of a norm for the Republicans to have resisted a Supreme Court appointment in President Obama’s last year. Had Republicans given Merrick Garland the full range of courtesy calls and then a hearing, plus scheduled a floor vote, they may still all have voted against confirmation. It mattered a great deal, however, that McConnell dispensed with all this procedure and simply announced that the majority wouldn’t consider the nomination—period. He and his allies wrapped up their rejection of any nominee—and of any process for considering the nomination—in faux democratic principles, arguing that the voters should have a chance to decide in a matter of only months who would occupy the White House and make the nomination.
Of course, had Trump lost but the Republicans still retained their Senate majority, there is little doubt that they would still have put up a fierce fight against any judge nominated by Hillary Clinton. In any event, the Republicans followed FDR in putting forward an ostensibly principled justification when their aim was baldly result-oriented.
So the Republicans committed a personal wrong against a president and a distinguished federal judge, denying them elemental courtesies, but also an institutional wrong by refusing to put the nomination through the standard and constitutionally prescribed procedures. The president was entitled to a nomination, but the Republicans essentially nullified it: The naming of Garland was received as if, for all practical purposes, it had never occurred. The Senate dispensed with its “advice and consent” function. McConnell asserted it had no such duty in the last year of a president’s term, but there is no such norm or tradition, and he well knew it.
It is irrelevant to this larger point that adherence to process and engagement in debate may not have moved one Republican vote. The point about process is this: One never knows. And the absence of a public process allows politicians to minimize their accountability, to escape debate and justification, and to dodge a recorded vote or clear stand on the merits. By doing so, they deprive the public of all opportunity to hear the competing views, make a judgment about which of the parties in the conflict are behaving responsibly, and participate through opinion and pressure.
By shutting down the constitutional process altogether, on a transparently sham argument, McConnell displayed disrespect for the institution he leads and caused it harm. As Yascha Mounk has reminded his readers, political scientists “have consistently found [that] the survival of stable democracies has always depended on the willingness of major political figures to play by the basic rules of the game”—to “uphold and promote democratic institutions.” McConnell and his colleagues failed this test miserably.
The answer to the damage wrought by the McConnell ploy is not more of the same, but instead relentlessly opposing troubling nominees. Winning the case in the court of public opinion, as FDR learned, inevitably affects the direction of the Supreme Court. The Court began moving in his direction even before he could alter its composition with his own nominations. He had public opinion with him on the merits of his constitutional vision, but he lost that support when the issue became the means he devised to achieve it. Progressives who are confident that now, and especially more as the years go by, the political future lies with them should keep that in mind.
There remains the question of the Court’s expansive understanding and exercise of its power. It is a serious question, one on which there may be some ground for left-right concurrence. Criticizing the packing plan from a conservative perspective, Adam White argues that the true problem is that “all confirmation battles will be ugly so long as the Court asserts so much power over our politics.” He is right, and the problem is one that calls for discussion of reform, such as term limits and supermajority voting requirements in judicial review of legislative enactments.
It won’t be easy to get this discussion going: The Court has managed to fend off even the bid for cameras in the courtroom and the adoption of a code of ethics. This is always a challenge of instituting a genuine reform program, as opposed to playing the same game but trying to rig it; it is just harder.