By Noah Feldman
Democrats are starting to sound serious about expanding the Supreme Court in hopes of reversing its rightward march. They need to stop. Court packing would be bad politics and something worse: a threat to the rule of law.
It’s OK to block nominees from the other party on ideological grounds. It’s wrong to destroy the structure of judicial independence that has been built up brick by brick since 1787.
Start with a basic principle of democratic government: When you have a majority, don’t do anything to the other party that you wouldn’t want them to do to you.
More than a moral precept, the political principle of don’t-do-unto-others isn’t derived from basic ideas about right and wrong. It’s derived from pragmatic self-interest.
In a democracy with two major parties, the only way the system can function is if each side remembers while in office that someday it will be in the minority. By choosing not to impose serious harm on the other side, the majority is participating in an implicit agreement of mutual benefit to both. The agreement is that both sides will follow the ground rules when they are in power.
Enforcing such an agreement isn’t easy. Enshrining it in writing — for example, in a constitution — can be useful. Yet written agreements can be broken as easily as unwritten ones. What actually keeps the agreement in place is a kind of mutually assured destruction theory. If one side breaks the deal, the other side can be expected one day to do the same.
In this sense, democracy is a kind of equilibrium between opposing parties. Break the equilibrium, pay a price.
Understanding this structure brings us to current proposals for court packing. They grow out of Democratic anger at occasions when Senate Republicans broke the existing norms of judicial appointment, notably in 2016 by refusing even to consider President Barack Obama’s Supreme Court nominee, Judge Merrick Garland.
Viewed in terms of the principle of treating the other party the way you’d want to be treated, the Republican rebuff was a deviation from the ground rules. The party controlling the Senate refused to give a vote of any kind to a Supreme Court candidate — in the Garland case, to one who was basically a moderate.
Republicans didn’t see it that way. As far as they were concerned, denying a vote on Garland was not so different from the way Democrats treated Robert Bork in 1987, voting down his nomination to the high court by President Ronald Reagan because they didn’t agree with his judicial philosophy. (At the time, the Democrats said that Bork was special because he was “out of the mainstream,” a description that couldn’t plausibly be applied to Garland.)
To assess the wisdom of court packing, though, it’s not necessary to decide whether refusing to consider Garland was a break from established norms. It’s enough to say that if it was, Democrats can retaliate proportionally.
The proportionate response would be for Democrats to refuse to confirm a Republican president’s nominee when they control the Senate.
Democrats would then effectively be saying that Republicans have changed the background rules of confirmation. It would follow, that we might get an incredible shrinking Supreme Court, with nominees added only when the president and the Senate majority come from the same party. There are reasons to think that’s a bad idea; but in any case it would be a state of affairs that followed logically from the Republican decision to block Garland.
A proportionate response is a tit-for-tat strategy: Whatever you do to me, I do back to you. Such a strategy can help reestablish equilibrium when it is in danger of being permanently broken.
In contrast, packing the court would be a disproportionate response to the Garland affair. Instead of doing what the Republicans did, Democrats would be raising the stakes by transforming the balance of the court in one fell swoop, rather than one justice is a time.
That in turn would invite Republicans to retaliate by doing the same thing. Instead of a shrinking Supreme Court, the result could be a vastly expanded Supreme Court, one that gets new members each time the president and Senate come from the same party.
That would be unsustainable. Not only could the court grow to an unmanageable size; its rulings could zigzag from one ideological extreme to the other.
A zigzagging court, deciding every case on ideological grounds, is the antithesis of the rule of law. Decisions must produce at least some degree of settled expectations for them to contribute to governance by law rather than by judicial fiat.
Respect for precedent need not be absolute to satisfy the requirements of the rule of law. Old decisions can be overturned when new circumstances demand it. And decisions that look like outliers can be reversed to make the law more coherent.
But without continuity, judges aren’t instruments of law. They’re just instruments of naked political preference.
The bottom line is that Democrats should reject court-packing because it would break the Supreme Court — not right away, but when the Republicans inevitably retaliated in kind. Tit-for-tat proportional response preserves democratic government. That should be enough when it comes to picking judges.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.