The Democrats Discover the Supreme Court

Pete Buttigieg’s endorsement of a court-packing plan exemplifies the high court’s journey from afterthought to central concern among progressives.

Pete Buttigieg
Stephen Lam / Reuters

Pete Buttigieg’s announcement of a Supreme Court–packing plan is surprising in ways both small and large.

The surprise comes less from the specifics of the proposal than from its circumstances. Buttigieg has been conspicuously cautious about policy initiatives, so his decision to center a sweeping revamp of the high court represents an unusually bold maneuver for the South Bend, Indiana, mayor’s presidential campaign. Moreover, the rollout exemplifies how the Supreme Court, once a somewhat tangential concern for many Democrats, has moved to the center of the agenda in the Trump era.

The details of Buttigieg’s plan are interesting in an academic sense, though unlikely to really set the parameters for any rearrangement of the Court. Based on a forthcoming paper by two law professors, his plan would expand the Court from nine justices to 15, five of them Democrats, five Republicans, and five unaffiliated. NBC’s Josh Lederman explains that those last five would be chosen from federal courts by the 10 partisan justices:

They’d have to settle on the nonpolitical justices unanimously—or at least with a “strong supermajority.” The final five would serve one-year, nonrenewable terms. They’d be chosen two years in advance, to prevent nominations based on anticipated court cases, and if the 10 partisan justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term.

The plan seems to contain a key contradiction. It eschews the treasured pretense that the Court is above, or at least outside, politics—a pretense that, as I wrote when Justice Brett Kavanaugh was confirmed in 2018, the public seems to buy into less and less. The Buttigieg plan reifies this shift, yet it also assumes that nonpartisan, mutually agreeable judges exist.

It’s an aggressively technocratic proposal for an ideological problem, in keeping with Buttigieg’s sales pitch as a reasonable man and his past work at McKinsey. Maybe it’s no surprise that former Representative Beto O’Rourke, another handsome young man running a moderate campaign, has also expressed interest in the same general Court-packing plan.

Court packing is not quite so unprecedented as its opponents would have the public believe. (In 1866, the Senate reduced the Court from 10 justices to seven as a swipe at President Andrew Johnson, then boosted it back to nine when Ulysses Grant replaced Johnson— a maneuver that might make even current Senate Majority Leader Mitch McConnell blush.) It is, however, a curious cause for the Democratic Party to take up at the same time that it is railing against Donald Trump for his destruction of long-standing political norms.

Nonetheless, and despite the technocratic bent of the 15-justice plan, the fact that Buttigieg and O’Rourke, two cautious candidates with vague policy platforms, have aligned themselves with it shows how central the Court has become to Democratic voters. For both men, it’s a means of offering an apparently bold policy proposal that will be relatively uncontroversial among primary voters.

As recently as the 2016 election, the existing Supreme Court was not at the center of Democratic Party politics, to say nothing of Court-packing schemes. According to Pew, 62 percent of Democrats called the Court “very important” to their voting in the election—which sounds impressive, but it placed behind gun policy, Social Security, and the treatment of racial and ethnic minorities, to name a few other issues.

This was true even though the election was held as McConnell was blocking a confirmation process for Merrick Garland, President Barack Obama’s nominee to a seat on the Court. In large part, Democrats assumed that Hillary Clinton would win, and then either Garland or a new appointee of Clinton’s would join the Court. Clinton spoke about the importance of some Supreme Court decisions—calling, for example, for the reversal of the campaign-finance case Citizens United—but it wasn’t at the heart of her campaign, or of Bernie Sanders’s.

It was a different story on the Republican side of things. Donald Trump promised to nominate conservative judges to the bench, even releasing a short list of possible nominees. Speaking to conservatives who remained uncomfortable with him, Trump repeatedly reminded them of the importance of the Court, an assurance that began to seem like a taunt by the end of the campaign. But Trump was right. The Court was of such importance to these voters that they held their nose and voted for him. It has paid off for both sides: Trump has indeed named judges that conservatives love, and they have rewarded him with strong support, including from some erstwhile never Trumpers.

Democrats have taken notice. The appointment of two young, very conservative justices (Kavanaugh and Neil Gorsuch) in Trump’s first two years, and especially the messy fight over Kavanaugh’s confirmation, energized progressives. By September 2018, 81 percent of Democrats named the Court as a very important voting issue, an amazing 19 percent rise from two years earlier.

Events since then have helped cement the Court’s place in Democratic fears. A series of states have instituted strict abortion limitations that seem designed to test whether the newly conservative Court is ready to overturn Roe v. Wade, leading Democratic candidates to leap to defend abortion rights in any way possible.

Beyond that, many of the major items on Democratic wishlists are likely to be dead on arrival in the Roberts Court as currently constituted. From voting rights to campaign-finance reform and health-care overhauls to the Green New Deal, a new Democratic president faces the real prospect of a Court blowing big holes in any policy proposal even if Congress is Democratically controlled. (Just ask Obama about the Affordable Care Act.) Changes to the Court are a possible prerequisite to any other major legislation, so it stands to reason that Democratic presidential hopefuls would pursue them, and it makes sense that Democratic voters would take new interest in the Court.

Back on the right side of the aisle, some conservatives worry that by cementing a conservative majority for the foreseeable future, Republicans may risk complacency among voters. It’s unclear what would happen if the Court did overturn or substantially undermine Roe before the next election: Would the victory energize conservatives? Or would they be even more complacent, while liberals were fired up? Either way, a genuine, widespread movement among Democrats to pack the Court and eliminate that generational conservative majority could become a major motivator for the party—but it might re-enliven Republican voters’ focus on the Court, too.