Let’s Think About Court-Packing

Yes, it’s a dangerous tactic. But so is permitting a reality in which Republicans win rigged elections and the Supreme Court winks.

By Ian Millhiser

Tagged DemocratsRepublicansSupreme CourtVoting Rights Act

Just two years ago, this would have been an extraordinarily radical essay.

Its premise is that court-packing—increasing the number of seats on the Supreme Court to change its ideological makeup—is, in certain limited circumstances, justified. And it is not unlikely that those circumstances will arise soon.

Long seen as an unacceptable tactic, court-packing is now increasingly viewed as the least-bad option by an array of scholars and activists fearful that the Supreme Court has become a wholly owned subsidiary of the Republican Party.

The Roberts Court isn’t just a deeply conservative body; it is a body at war with democracy itself. Republicans on the Supreme Court have hobbled a key provision of the Voting Rights Act, and unleashed a torrent of money upon our elections. They brushed off voter suppression laws, and turned a blind eye to partisan gerrymandering. One recent decision held that voting rights plaintiffs who allege that a law was enacted with racist intent must overcome a burden of proof so high that it may now be simply impossible to win such cases in the future.

All four of the Republican-appointed justices who sat on the Court in 2016 voted to reinstate the most aggressive voter suppression law in the country—a North Carolina law that, according to a federal appeals court, targeted “African Americans with almost surgical precision.” If Justice Antonin Scalia were still alive when this case reached the Court, one of the worst voter suppression laws since Jim Crow would have taken effect during the already problematic 2016 election.

And then there’s the Supreme Court’s newest member, Brett Kavanaugh. The fifth Republican vote belongs to a man who blamed credible allegations that he committed sexual assault on a shadowy conspiracy undertaken to secure “revenge on behalf of the Clintons.” Kavanaugh has implicitly vowed revenge against the Democratic Party, telling his political opponents that “What goes around comes around.” He now holds the deciding vote on an array of upcoming voting rights cases.

Kavanaugh, moreover, joins a Court led by a man who’s long fantasized about dismantling America’s most important voting rights law. For years, stretching back to his time as a Reagan Administration lawyer in the early 1980s, Chief Justice John Roberts believed that the entire Voting Rights Act—including the parts left untouched in his 2013 decision in Shelby County v. Holder—should be neutered. Kavanaugh will likely provide Roberts with the fifth vote he needs to eliminate meaningful checks on racial voter discrimination, freeing red states to enact laws that shut Democrats of color out of the polls.

Likewise, these four conservative justices believe that state ballot initiatives giving independent redistricting commissions the power to draw legislative lines are unconstitutional. Kavanaugh will likely be the fifth vote for this proposition as well, eliminating one of the most effective ways we have of fighting gerrymandering.

This new Supreme Court could, in effect, usher in an era in which competitive elections essentially cease to exist in the United States—at least at the federal level. Democrats would lose any meaningful ability to compete for the presidency or for control of Congress. The United States would, of course, still hold elections, and many Democrats would serve as minority players, but the question of who ultimately rules in this country would be predetermined by a web of gerrymanders and voter suppression laws passed by Congress or state lawmakers and upheld and validated by the Supreme Court.

As the Court once recognized in its 1938 decision in United States v. Carolene Products, the judiciary has an obligation to intervene when lawmakers restrict “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or when those lawmakers target the electoral process itself. When these legislators attempt to entrench their own rule, the courts have an obligation to roll back those laws and restore the voters’ power to choose their own leaders.

This same principle works in reverse as well. That is, when a conservative-dominated Supreme Court entrenches its own rule by handing down decisions on matters like voting rights that all but guarantee that future justices will be chosen by Republicans, Congress has a duty to intervene and ensure that elections will remain competitive. If the Supreme Court’s current majority is committed to one-party rule, then Congress must create a new majority on the Supreme Court that will return power to the voters.

Contrary to what some may believe, the Constitution did not set any particular number of associate justices. That was done by an act of Congress, the Judiciary Act of 1869. Therefore, Congress, which has the power to increase the number of seats on the Supreme Court, is the only body that can defend democracy against a rogue Court. And, in the limited circumstances where liberal democracy itself is threatened by the Court, Congress must act by packing the Court.

Court-packing is a dangerous tactic, though. If either party resorts to court-packing, they risk destroying the legitimacy of the judiciary—the mechanism America should be using to resolve legal disputes peacefully and, in theory, free of partisan political considerations.

But with a partisan judiciary that is hostile to the franchise itself, court-packing may be the least-worst option. At this point, it may be the only way to prevent permanent rule by an increasingly radicalized GOP.

How We Got Here

The Constitution says nothing about how many justices shall sit on the Supreme Court. It merely vests “the judicial power” in “one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The Judiciary Act of 1789 established a six-justice Court, and this number ebbed and flowed during the Court’s first century, swelling to as many as ten justices under President Abraham Lincoln. The Court shrunk to seven under President Andrew Johnson but grew to nine after the election of President Ulysses S. Grant in 1868. It’s remained at nine seats ever since.

There is no modern precedent for court-packing—that is, for increasing the Supreme Court’s size in order to shape its decisions. Yet, in 1937, President Franklin Delano Roosevelt famously proposed adding six justices to dilute the votes of anti-New Deal justices. Roosevelt’s proposal was not well received in Congress, and ultimately proved unnecessary as Justice Owen Roberts, who’d previously voted with the four justices opposed to the New Deal, flipped his vote in West Coast Hotel v. Parrish, upholding a state minimum wage law and ushering in a new era in which the Supreme Court largely stayed out of policy debates.

While no one since Roosevelt has attempted to increase the Supreme Court’s size, Republicans escalated the judicial confirmation wars to something akin to a court-packing crisis under President Obama.

In 2013, when Obama sought to fill three vacancies on the United States Court of Appeals for the District of Columbia Circuit—giving Democratic appointees a majority on the nation’s second most powerful court—the top Republican on the Senate Judiciary Committee proposed reducing the number of active D.C. Circuit judges from 11 to eight. Republicans lacked the votes to move forward with Senator Chuck Grassley’s proposal, but they did filibuster Obama’s nominees.

The impasse broke when Senate Democrats engaged in some hardball tactics of their own, invoking the so-called “nuclear option” to allow most presidential nominees to be confirmed by a simple majority vote. In the end, Obama successfully filled all three seats.

This showdown foreshadowed a more significant skirmish. Just hours after news broke of Justice Antonin Scalia’s death, Senate Majority Leader Mitch McConnell announced that “This vacancy should not be filled until we have a new President.” The Republicans held the Senate majority, so he followed through on this promise, making sure this seat remained empty until President Trump could fill it with conservative Judge Neil Gorsuch.

Both incidents amount to reverse court-packing. Rather than add seats to the D.C. Circuit or the Supreme Court in order to cement their control over the bench, Republicans effectively subtracted seats from these courts—in the latter case reducing the number of justices to eight until a Republican President could fill the missing seat. In the wake of L’Affaire Garland, any attempt at permanently adding additional seats to the Supreme Court—which would have to be done through congressional legislation—would still be an escalation in the judicial wars. But the seal has already been broken on tactics that manipulate the Court’s size for partisan gain.

Chipping Away at the Four Pillars of Voting Rights

It’s not hard to guess why McConnell cared so deeply about who controlled the Supreme Court. Donald Trump lost the national popular vote by nearly 3 million ballots, and would be an embarrassing historical footnote if the Electoral College didn’t treat votes cast by white midwesterners as more valuable than votes cast by urban voters of color. Yet, while the Electoral College handed victory to the second-place finisher in 2016, long-term demographic trends will at some point in the near future overwhelm the unfair advantage our electoral system gives to Republicans.

According to CNN’s exit polls, 55 percent of voters under 30 supported Hillary Clinton in the general election, while only 36 percent voted for Trump. Voters between the ages of 30 and 44 favored Clinton by ten points. And a Pew poll taken last March showed that millennials prefer Democrats to Republicans by a 59 to 32 percent margin. Younger, more diverse voters have little patience for the GOP, while the Republican Party’s older, mostly white base is literally dying off. If these trends continue, the Republican coalition will shrink until it is no longer able to win a national election fairly.

But rather than moderate their views to become more popular with the emerging electorate, the Republican Party’s response has been to pass a wave of voter suppression laws, aggressive gerrymanders, and other tactics intended to inflate the power of white Republicans at the expense of Democrats. In 2010, for example, the GOP launched a plan known as “REDMAP”—an effort to capture state legislatures and use them to draw districts that lock the Republican Party into power.

It worked. As a Republican State Leadership Committee memo boasted after the 2012 election, “Republicans enjoy a 33-seat margin in the U.S. House seated yesterday in the 113th Congress, having endured Democratic successes atop the ticket and over one million more votes cast for Democratic House candidates than Republicans.”

Unfortunately, any meaningful shot at striking down programs like REDMAP died last June, when the Supreme Court punted its decision in a partisan gerrymandering case until after Justice Anthony Kennedy announced his retirement. With Kennedy gone, there’s no realistic way of finding five votes to abolish partisan gerrymandering.

Meanwhile, the Court spent the last several years—with Kennedy’s support—dismantling the network of voting rights protections intended to keep states from disenfranchising voters.

Before Roberts took his seat at the center of the Court’s bench, four major pillars supported the right to vote. Under Roberts’s leadership, the Court dismantled two of these pillars, hollowed out a third, and, with Kavanaugh confirmed, will likely destroy the fourth.

First off, in Crawford v. Marion County, the Supreme Court rejected a challenge to Indiana’s strict voter ID law. Voter ID requirements ostensibly prevent voter impersonation fraud at the polls, but such fraud barely exists. An investigation by Iowa’s Republican former secretary of state uncovered zero cases of this form of fraud. A study examining 3 million votes cast by Wisconsin voters in 2004 also found zero cases. Notably, the lead opinion in Crawford was only able to identify one instance of in-person voter fraud anywhere in the United States in the previous 140 years.

Meanwhile, voter ID laws disenfranchise thousands of voters of color, low-income voters, and students—all of whom tend to prefer Democrats over Republicans. The practical effect of Crawford is that states may enact election laws to solve supposed problems that are, in reality, only slightly more common than unicorns. And they may do so even if the actual effect of such laws is to advantage the political party that wrote the law.

The Court’s second major blow to voting rights came in Shelby County v. Holder in 2013, which effectively deactivated Section 5 of the Voting Rights Act, based on the notion that America is no longer racist enough to justify leaving that law intact. Notably, Trump won the next presidential election after Roberts declared that “Our country has changed” so much since the 1960s that the “extraordinary measures” the Voting Rights Act used to combat racial voter discrimination were no longer justified.

This new Supreme Court could, in effect, usher in an era in which competitive elections essentially cease to exist—at least at the federal level.

Shelby County, therefore, neutered the section of the Voting Rights Act requiring states with a history of racial voter suppression to “preclear” new voting laws with officials in Washington, D.C. before those laws could take effect. This requirement arose because vote suppressors are nimble—far more nimble than a court system that may take months or years to strike down a particular election law—and they have often been able to come up with new ways of suppressing the vote faster than the courts can strike them down.

Without a fully operational Voting Rights Act, victims of racial voter discrimination still had two tools in their belt. But one of these tools was dealt a grievous blow this past June, and the final one is likely to fall victim to the Court’s new majority.

Section 2 of the Voting Right Act, which Roberts left intact in Shelby County, prohibits any law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Voting rights plaintiffs do not need to prove that a law was enacted with racist intent in order to win their case, they need only to show that the law would have the effect of making it harder for voters of a certain race to cast a ballot.

Roberts left Section 2 intact in 2013, but there’s a long history that suggests he’s eager to tear it down. As a young Justice Department lawyer, Roberts was part of a conservative faction that urged President Reagan to require voting rights plaintiffs to prove racist intent to win their case. In 1980, the Supreme Court held that the Voting Rights Act, as originally drafted, only targeted laws enacted with a “racially discriminatory motivation.” Reagan signed the modern-day version of the Voting Rights Act in 1982, but over the objection of Roberts and other members of Roberts’s conservative faction. At least one of the memos circulated by this faction in the early 1980s implies that the law Reagan signed in 1982 is unconstitutional.

Roberts did not moderate his views after he lost this fight, however. In 2014, for example, Roberts tried to water down the federal ban on housing discrimination to require plaintiffs to, once again, prove racist intent. (He could not convince Justice Kennedy to go along with him on this one.) During oral arguments, Roberts implied that any civil rights law that allows plaintiffs to prevail if they can show a disparate racial effect is the equivalent of an unconstitutional racial quota.

It is more than likely that Roberts still wants to strike down the law he urged President Reagan to oppose in 1982. And with Kavanaugh on the bench, Roberts will likely have the five votes he needs to do so.

So, here, finally, we have the third prong of America’s voting rights regime: the ability to win a voting rights suit even if you cannot prove that lawmakers acted with racist intent. And it is likely that this prong will fall very soon. Of course, if that happens, a voting rights plaintiff may still prevail if they can show that lawmakers acted with racism in their hearts. But the Supreme Court largely closed off this potential path to victory in June of 2018.

In Abbott v. Perez, the Supreme Court held that lawmakers accused of acting with invidious motives enjoy an extraordinary presumption of racial innocence. Absent the kind of cartoonishly racist statements we once saw in newsreels featuring George Wallace, it may no longer be possible to convince the Supreme Court that racism still exists, even with Donald Trump as President.

So what does America look like without a functioning Voting Rights Act? Voter ID laws are only the beginning. In 2015, the state of Alabama augmented its voter ID law by attempting to shut down DMV offices in predominantly black counties—effectively preventing many African Americans from obtaining the ID they needed to vote. The state backed down under pressure from the Obama Administration, but Obama is no longer President. And a future Democratic administration would have little leverage if the web of laws protecting voting rights are dismantled.

Consider, now, North Carolina. In 2013, according to a federal appeals court, North Carolina lawmakers “requested data on the use, by race, of a number of voting practices,” and then used that data to enact “legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” The state didn’t simply enact a voter ID law; it specifically excluded forms of ID that black people were likely to possess and included “only the kinds of IDs that white North Carolinians were more likely to possess, ” according to the judges of the federal court in Richmond, Virginia. It also cut down the number of early voting days by slashing the particular days when black voters were most likely to show up.

In a world without the Voting Rights Act, these tactics will proliferate. States will allow voters to use gun permits to vote but not student IDs, as Texas did through a 2011 law. Polling places in black neighborhoods will be shut down—and those few that do exist will find themselves with a shortage of voting machines. Voter registration forms will be tossed out because they contain minor errors or because they don’t match the information in an unreliable government database. Black and Latino voters will be purged from voter rolls. Voters of color will be packed into a handful of overwhelmingly Democratic districts, while white Republicans are spread widely to maximize their influence.

Again, the United States will, of course, continue to carry out elections, but the results will be preordained. And that will ensure that future justices will be chosen by presidents much like Donald Trump.

The Price of Court-Packing

If the Supreme Court goes down this road, and it is more likely than not that it will, this assault on voting rights will not happen in isolation. With Kavanaugh on the Court, Roe v. Wade is doomed. Religious conservatives will most likely gain even more rights to discriminate. Laws protecting workers from rapacious employers could be watered down to nothing. And any major legislation signed by a Democratic President is in serious jeopardy for the foreseeable future.

In the worst case scenario, the Court could repeat the sins of the Lochner era, a period in the late nineteenth and early twentieth centuries when child labor laws, minimum wage laws, and laws protecting workers’ right to organize were all struck down on fabricated legal theories. (Lochner refers to a 1905 Supreme Court decision striking down a New York law that limited bakery employees’ workweeks to 60 hours.)

A single bad decision—or even quite a few of them—alone cannot justify court-packing. This tactic can’t be justified solely because the Court overrules Roe. Or because it gives certain business owners a right to discriminate. Or even because it might strike down major legislation like the Affordable Care Act. That is not because such decisions would be correct, or even because they are defensible. It is because court-packing comes at a high cost.

If Congress packs the Court, the United States will not simply settle into a new equilibrium with a new Supreme Court majority. In their bestselling book, How Democracies Die, Harvard political scientists Steven Levitsky and Daniel Ziblatt highlight the importance of what they call “norms of forbearance.” Forbearance “can be thought of as avoiding actions that, while respecting the letter of the law, obviously violate its spirit.” It means not doing something simply because you possess the power to do it. It teaches, for example, that the opposition party should not have refused to confirm anyone Obama named to a vacant Supreme Court seat, because norms dictated his right to do so.

Abandoning forbearance risks setting off a cascade where one party, feeling slighted by the other’s departure from norms, believes that it has no choice but to answer in kind. Democrats, for example, viewed their 2013 decision to invoke the nuclear option as, in the words once used by constitutional scholar Mark Tushnet, “a defensive form of constitutional hardball”—merely restoring the balance of power that would have existed if Republicans had exercised forbearance in the first place—instead of as the escalation the Republicans characterized it as being.

This dynamic, where one party uses the other’s norm violation to justify violations of its own, can obviously spiral out of control. As Levitsky and Ziblatt warn, democracy is “a game that we want to keep playing indefinitely.” But if one party antagonizes the other too much today, they risk goading that party into “refus[ing] to play again tomorrow.”

If Democrats pull the trigger on court-packing, the battle over the judiciary will become a full-out war. Republicans will retaliate with more court-packing if they regain control of the federal government. Red-state governors will refuse to obey Supreme Court decisions they disagree with, forcing the (then-Democratic) President to send federal marshals or even federal troops to enforce such decisions. Overzealous use of marshals and soldiers could easily trigger civil unrest.

This price is worth paying only if Democrats truly have no meaningful recourse to the ballot box. It is a last resort, to be deployed only as an alternative to permanent, one-party rule.

The Threat Alone Is a Nuclear Deterrent

Yet Democrats should not shy away from threats of court-packing. And these threats must be credible. Like a nuclear deterrent, court-packing is a weapon whose very purpose is to ensure that it is never used. If the Supreme Court fears nuclear retaliation, it is more likely to moderate. If Republicans believe that court-packing is imminent, it is possible that they could be pressured to support a constitutional amendment depoliticizing the judicial selection process.

Should Democrats deploy this terrible weapon, it is likely that they will make the decision to do so based on imperfect information. If Democrats regain control of Congress and the White House, such control will be temporary, given the backdrop of a nation with truly free and fair elections. Republicans on the Supreme Court may simply wait until after their fellow partisans regain control of Congress or the White House, and then make use of that moment to dismantle America’s voting rights regime. If they time this attack on democracy well, Democrats may never get the chance to defend themselves.

Democrats should not shy away from threats of court-packing. Like a nuclear deterrent, it is a weapon whose purpose is to ensure it is never used.

Add to this dilemma another level of uncertainty. I stand by my statement that court-packing is not justified solely because of a single decision, or even quite a few decisions, undermining liberal policy goals. But a rigidly partisan Supreme Court risks radicalizing the electorate against democracy itself.

The case for court-packing is clear, and the course of action is obvious, if the Supreme Court tries to rig elections so that only Republicans can win nationally. But what happens if the Court wages a subtler war on democracy? What if, rather than stripping away Democrats’ right to vote, the Court leaves them, in the words of Dr. Martin Luther King, with “nothing for which to vote”?

Now imagine that Kavanaugh succeeds, as he appeared eager to do in his confirmation hearing, in exacting revenge against Democrats. In such a world, Democrats are shut out of national political power and unable to regain control of Congress or of the White House. It won’t take long before Republicans figure out that they are locked into power and do not need to worry about the consequences of passing unpopular legislation—legislation like the Republican health-care bills that would strip care from tens of millions of Americans. Meanwhile, Republicans on the Supreme Court could become similarly emboldened once they realize that they have a permanent majority. A new Lochner era could soon follow.

In such a world, the millions of Americans deprived of health benefits, job security, freedom from discrimination, or a secure retirement by right-wing policies are unlikely to rally behind democratic solutions. In his masterwork, The Great Transformation, economic historian Karl Polanyi blamed the rise of fascism in Europe on the failure of early twentieth century governments to offer their people real solutions. “The moment would come,” Polanyi wrote, “when both the economic and the political systems were threatened by complete paralysis.” In this moment, “Fear would grip the people, and leadership would be thrust upon those who offered an easy way out at whatever ultimate price. The time was ripe for the fascist solution.”

The opposite is also true. As University of California, Berkeley economist Barry Eichengreen notes in The Populist Temptation, during the period between 1939 and 1975, when the world’s most advanced nations saw a flowering of democracy, progressive regulation, and an expanded welfare state, “[N]o anti-system party, defined as one actively seeking to subvert the established political system, formed a government” in the United States, Canada, Australia, Japan, or in 16 European nations.

An anti-democratic Court, in other words, is likely to breed an illiberal nation. The spectacle of our nation running election after election where the result is predetermined will not inspire faith in constitutional democracy. It will only increase the allure of radical populism. Indeed, a Court committed to both voter suppression and laissez-faire social Darwinism could pave the way for a leader much like Donald Trump, but without the goonish incompetence that, thus far, has prevented Trump from fully consolidating power.

Worse, this death spiral may occur even if the Court limits its moves to substantive attacks on Democratic policy. So even if the Voting Rights Act remains in place, progressives are likely to lose faith in democracy if duly elected Democratic majorities are unable to govern. In other words, if the Supreme Court chooses the Lochner-ian path, court-packing may also be necessary.

So, while the price of court-packing is high, the price of failing to rein in a rogue Supreme Court could potentially be even higher. I do not claim to know when Democrats should use this awful weapon against a Court determined to repeat the sins of the Lochner era. But I do know that the answer to this question is not “never.” America may be witnessing the early stages of a battle to save liberal democracy from the Supreme Court. Neither Democrats, nor small-d democrats writ large, can afford to unilaterally disarm.

Read more about DemocratsRepublicansSupreme CourtVoting Rights Act

Ian Millhiser is the Justice Editor at ThinkProgress and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

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