By Jonathan Bernstein
Democrats are already talking about the possibility of playing some serious constitutional hardball if they win back the White House and achieve House and Senate majorities in the 2020 election. The utmost example of this would be to expand the size of the Supreme Court and add liberal justices.
Don’t count on it happening. At least, not at first.
Court packing — raising the number of justices — is absolutely legal. The Constitution doesn’t set the size of the court, leaving it up to Congress. Yet the number has stayed at nine since 1869, and hasn’t been challenged since Franklin Roosevelt’s attempt to change it in 1937. (The attempt failed, but it may have helped get him what he wanted anyway.)
There’s good reason to believe that violating that norm would have costs in terms of the stability of the entire political system.
Of course, there was also a norm, up until 2016, that the Senate would at least consider any presidential nominee to the court, and during times of divided government the president and the Senate majority would work to find a compromise. There was also a norm that nominees would refrain from partisan conspiracy-mongering, but that’s gone, too.
It’s the nature of constitutional hardball that when one party does it, the other party fights back in an ever-accelerating spiral. Whether this would justify Democratic court packing is an interesting question.
But speculation about it is exactly what we should expect, given Senate leader Mitch McConnell’s tactics and Brett Kavanaugh’s partisanship (and Republican gloating). Liberals are livid about how the last two Supreme Court vacancies were filled, and itching to doing something radical about it.
Even so, my guess is that we shouldn’t expect immediate Democratic action in 2021, even if the party has attained unified government.
For one thing, any Democratic majority in the Senate would likely include some fairly moderate liberals from swing or Republican states who won’t want any raw partisan fights over the court. Unless Democrats win a large majority, they won’t have the votes, and even then there’s no way they’ll have the 60 they’ll need.
Beyond that, Democrats are going to have a lot of priorities the next time they have a chance to legislate — health care, climate change, voting rights and all the other areas where the Trump administration eroded or reversed their policies. And this list doesn’t even include any new pressing issues that arise between now and 2021 (or 2025 or whenever Democrats next get the chance).
Some triage will be necessary. It’s unlikely that court packing will be at the front of that line.
Some Democrats will argue that everything else they do is useless until the court changes. But others will believe that substantive bills should take precedence over procedural matters. My guess is that substantive measures will win that fight.
The wild card is what the new Roberts court does in the next couple of years — and then how it reacts to this hypothetical Democratic majority once that majority starts passing legislation. If John Roberts, Sam Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh are aggressive, they may be knocking out liberal laws and precedents just as the Supreme Court did during Franklin Roosevelt’s presidency. They will almost certainly severely restrict or end the right to an abortion.
The court could, however, go a lot further than that and start to dismantle core programs of the Great Society and the New Deal. After all, it’s quite likely that at least some of the justices believe that all the programs liberals have passed from 1933 on violate the Constitution. What’s far less clear is what they have five votes for — and to what extent respect for precedent and for the popularity of these policies would give them pause even if they believe in some abstract way that these programs should all be gone.
Democratic court packing as revenge is unlikely. It’s also unlikely that Democrats will resort to it to achieve a single policy goal, even one that is very important to their coalition.
But court packing, or at least the threat of it, as a defense against a war by the Supreme Court on unified Democratic government and on past Democratic accomplishments? Yes, if Democrats believe it’s the only way to fight back against an aggressive court, then it certainly could be on the table.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.