Focus on court reform

The urgent need for court expansion

[Ed. note: The prospect of adding seats to the Supreme Court has been a rallying cry for some left-leaning politicians and activists for years. When Democrats won the White House in November and narrowly took control of the Senate in January, those calls intensified. President Joe Biden has been non-committal but has pledged to study the issue. We asked two leading commentators, one on each side of the debate, to assess the prospects of court expansion and present their case for why it is, or is not, needed. The other piece in this series can be found here.]

Aaron Belkin is director of Take Back the Court and the Palm Center, as well as a professor of political science at San Fransisco State University.

When I founded Take Back the Court in 2018, the fight for Supreme Court expansion was a lonely one. In the two years since, dozens of organizations, elected officials and opinion leaders have come on board. But some of the stiffest resistance has come from the legal community.

That skepticism makes sense. For good reasons, lawyers and legal professionals are socialized in the idea that courts must be as above the fray, nonpartisan and legitimate as possible. Unfortunately, today’s Supreme Court hardly lives up to the paradigm.

In 2016, when Sen. Mitch McConnell and the Republican Senate refused to consider the nomination of Judge Merrick Garland to the high court, they didn’t just steal a seat — they robbed the court itself of some of its remaining legitimacy. Last year, when they broke their own cynically contrived rule against confirming justices in an election year to confirm Justice Amy Coney Barrett, they obliterated any facade that the court is above the partisan fray.

But the assault on the court’s independence is not only coming from outside the building. As many readers of SCOTUSblog likely know, Sen. Sheldon Whitehouse examined all 73 split-decision civil cases between 2005 and 2018 in which Republican Party donors had a clear interest. The conservative majority sided with conservative donors all 73 times. In approximately half of those cases, the majority ignored, overturned, or sidestepped conservative judicial doctrine to reach a decision favored by their co-partisans. That’s not calling balls and strikes, and it’s not just conservative jurisprudence. It’s a court functioning, for all intents and purposes, as an extension of the Republican Party.

Democracy on the brink

The court’s partisanship has especially alarming implications for American democracy. Whenever I make the case for expansion, I start with the reality that our democracy is in peril. Inevitably someone asks whether that’s hyperbole. It’s not.

Democracies can’t function when only one side is allowed to govern regardless of how people vote or, worse, when only one side believes in democracy at all. True, Democrats can still eke out electoral victories if they achieve popular vote blowouts. But even then a majority of House Republicans voted to overturn the will of the people in the latest presidential election, and state Republican parties responded with an unprecedented barrage of new voter suppression laws and plans to gerrymander their way to a House majority in 2022. As this audience well knows, the court is complicit in the effort to rig the system, having eviscerated the Voting Rights Act and greenlit partisan redistricting. And it is likely to block restorative measures as well as policy solutions to urgent challenges like climate change. 

The only way we can restore the court — and democracy itself — is to add seats, and the only window to act is now. That’s why I welcome this opportunity to dive into concerns I hear from well-meaning skeptics.

1. Even if Republicans broke the norms first, wouldn’t it be better for democracy if Democrats respect them?

It is wrong and dangerous to consider reversing a broken norm as an act of norm-breaking itself. Doing so would incentivize and entrench ongoing normative violations. (In game theory, this is called playing the sucker, though the point here isn’t to score points for the Democratic Party, but rather for democracy.)

As Professor Thomas Keck underscores, there’s a critical difference between constitutional hardball designed to tank democracy and hardball designed to strengthen it. Adding seats is the way we can ensure the John Lewis Voting Rights Act, D.C. statehood, and so many other reforms focused on strengthening democracy can survive.

2. Won’t Republicans just retaliate and add more seats when they are in power? 

The GOP has already stolen the court. If it does so again in response to court expansion, we will be no worse off than today. Even if Democrats do nothing, Republicans will surely pack the court next time they have the need and opportunity to do so. We know this because Republicans have spent years trying, and in some cases succeeding, to pack state supreme courts. And because they were perfectly happy to change the size of the U.S. Supreme Court (to eight) for as long as it took to elect a Republican president.

3. Wouldn’t court expansion driven by Democrats exacerbate the partisanship problem? 

While the Democratic Party needs to drive judicial reform, re-balancing a stolen, hyper-partisan court would actually decrease partisanship on the bench because, on the whole, Democratic-appointed judges do not behave like Republican-appointed judges. We analyzed 309 votes by judges and justices in 175 pre-election cases. Republican appointees voted to obstruct ballot access nearly 80% of the time. By contrast, Democratic appointees tended to vote in a progressive direction, favoring expanded access to the ballot 63% of the time. But that still leaves 37% of the time in which Democratic appointees voted to uphold voting restrictions – votes that would usually be against the Democratic Party’s interests. The numbers suggest that Democratic-appointed judges interpret the law through the prism of their values, to be sure, but in an even-handed way, not simply for partisan gain.

4. Why not a reform like term limits that feels less partisan?

I support term limits for justices. Along with adding seats, there are a number of additional steps that would help reinforce the court’s independence and integrity. But none of the alternatives would immediately rebalance the court, ending the illegitimate conservative court majority that threatens to derail urgently needed democratic reforms and policy solutions. Term limits alone would leave in place a conservative majority for the foreseeable future and are therefore at great risk of being overturned by the very court they mean to reform.

5. Won’t Democrats pay a price at the polls?

Republicans advance this idea to scare Democrats. But when push came to shove, vulnerable Republican senators did not spend money talking about court expansion as they courted swing voters in 2020. This is consistent with rigorous social science research that predicted that court expansion advocacy would not lead to a backlash at the polls.

6. How can court expansion survive a filibuster or win the support of moderate Democratic senators?

The politics of judicial reform and filibuster reform continue to shift rapidly. In less than two years, court expansion has gone from being viewed as a fringe issue to becoming a major part of the national policy conversation. In most polls, it’s now favored by a majority of Democratic voters and a plurality of Independents. Support will only continue to increase as Trump judges and justices take a wrecking ball to the widely popular Biden agenda.

I don’t know exactly when the moment to make court reform a reality will come, but I do know we have to keep making the case and be ready when it does. And I know the SCOTUSblog community — some of the country’s most passionate, expert legal thinkers and practitioners — will be a crucial part of our growing coalition. That’s why I’m so grateful for the chance to address some of your concerns and ask you to join us.

There is really only one choice to make: We can give ourselves a fighting chance at staving off disaster. Or we can continue to play the sucker as the United States continues toward what may be an authoritarian outcome.