Reform the Court, but Don’t Pack It

The goal shouldn’t be to make the Court less ideological, but to make it less powerful.

Getty / The Atlantic

Progressives are taking the idea of reforming the Supreme Court seriously. Late last month, Democrats revealed they are planning an election platform that calls for “structural court reforms.” And no wonder—Democrats are unhappy with the Republican capture of the judiciary: Donald Trump has stocked the federal bench with conservative judges and, at the very top, all but guaranteed a clear conservative majority on the Supreme Court for decades to come—a severe threat to any progressive legislation in the foreseeable future.

Democrats are reportedly being noncommittal about precisely how to proceed. According to The New York Times, one campaign official suggested that the platform language serves more as a values statement, not an indicator of specific changes or proposals. At this point, a vague statement is probably a good thing. For one, it indicates that enough Democrats saw through Chief Justice John Roberts’s strategic efforts late in this year’s term to sap energy from the Court-reform movement. Moreover, caught up in whether to champion “court packing” or reject it—as Joe Biden, their presumptive nominee for president, already has—Democrats have barely begun to discuss what kind of reform makes most sense.

There are two basic types of reform. One type adjusts the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office. The second kind disempowers the institution itself—removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes. As we argue in a new paper, this second brand of reform is best. The first sort of fix may serve the Democrats in the short term, but at the price of naked partisanship and possible blowback, while the second facilitates progressive ends and, just as important, reinvigorates American democracy.

The current wave of reform efforts first emerged when Judge Merrick Garland was denied confirmation at the end of President Barack Obama’s term because of Senate Majority Leader Mitch McConnell’s hardball” tactics, and swelled to a clamor after Brett Kavanaugh’s divisive and hard-fought confirmation provided a more reliable conservative majority on the Supreme Court than before. During the Democratic primary last year and this past winter, the topic gained more traction than at any time in almost a century. But the debate has been for the most part stuck, as the ascendancy of court packing has screened out the broader range of options and the possibility of comparing and contrasting them.

For reformers advocating the first strategy, the Supreme Court has been lost to Republicans and the goal is to take it back. The revival of New Deal President Franklin Roosevelt’s 1937 proposal to “pack the courts,” for example, simply accepts that federal courts wield tremendous policy-making authority. The goal is thus to wrest partisan control away from conservatives, either in order to claw back ill-gotten gains, or because the practical outcomes of conservative judging are viewed as bad.

Similarly, the centrist former presidential candidate Pete Buttigieg endorsed a proposal during the Democratic primaries for the Supreme Court to consist of five Democrats, five Republicans, and five “apolitical” justices. The purpose of this reform is to make the Court (seem) less ideological, structuring it to produce compromise outcomes and rescuing it from its unfortunate slide into “politicization.” Such wonkish plans, however, merely assume that the Court should and will continue to sit as an unelected “super-legislature.” Such a body cannot be apolitical—and such reforms only hide the exercise of its power better.

This does not mean that all attempts to reform the Supreme Court through personnel management are created equal. Adding justices works differently than striving for a moderate Court that reflects the current partisan split in Washington. While the former would, ideally, help advance a progressive agenda, the latter aims at restoring the Supreme Court’s “legitimacy” as a nonpartisan—which is to say, ideologically moderate—actor. Both, however, take as a given that the Court will continue to settle many of American society’s most important and most controversial political questions. The goal of these reforms is to change the attitudes of those on the bench, in the hope of getting either more progressive or more “centrist” answers.

Contrast these reforms with the other approach: disempowering the Supreme Court and transferring some of its existing authority to the democratically accountable branches. Since at least the early 20th century, both progressive and conservative groups have called for Congress to strip federal courts of jurisdiction over controversial topics such as labor regulation, flag burning, or gun control. New Deal Democrats even proposed eliminating entirely the Court’s power to invalidate federal legislation. These reforms are fundamentally different from efforts to re-staff the Court; they recognize that the problem is not who serves on the Supreme Court but what power it has.

For that reason, such reforms challenge the legitimacy of allocating to democratically unaccountable judges the final say on such topics. They recognize that the point is not to “save the Supreme Court” but to save the American system of self-government.

A proposal, advanced by 1920s progressives among others, to require six or seven justices (rather than the current five) to agree before declaring a federal statute unconstitutional functions similarly. Such a “supermajority” requirement would have no explicit partisan benefit for one team or the other.  What it would accomplish instead is to shift significant power away from the appointed, life-tenured judiciary and to the political branches—Congress and the president.

A supermajority rule might seem more attractive than stripping jurisdiction to those who view the Supreme Court as an important protector of rights. Barring an unusually lopsided bench, in cases of uncontroversial constitutional violation, the Supreme Court would remain empowered to step in. However, in more closely contested cases, members of Congress and the president would determine what the Constitution permits. If the Supreme Court cannot agree on what the Constitution means, the decision ought to be left to Congress, and in turn the popular will. A supermajority rule would implement what the Harvard professor James Bradley Thayer at the turn of the 20th century called a “clear error” standard for judicial review. But whereas Thayer proposed that judges limit themselves to upsetting democratic decisions only in cases of “clear” violation, a supermajority rule would ensure that five justices could not advance a reactionary agenda or thwart progressive change.

Reforms that disempower the Supreme Court may involve a period of conflict if the Court resists having its authority taken away. The Supreme Court has, for instance, historically interpreted jurisdiction-stripping legislation incredibly narrowly, thereby preserving the judiciary’s authority. Significant reassignments of power very rarely happen without a fight. But we know from New Deal history that court packing proved so radioactive that Roosevelt could not push it through. A titanic contest over the Supreme Court hardly seems worth it for mere short-term gains.

Because of the prominence of “court packing,” court reform is unappealing to some because of the objection that it will set off partisan spirals. It could escalate beyond control, they say, with no stopping point as victors just keep upping the numbers on the high bench with every election cycle. The plan looks too close to the unsavory business in Poland, where 44 spots on the country’s Supreme Court were added in 2018. The Times’ Jamelle Bouie, who has eloquently mainstreamed court packing, reassured listeners of a recent podcast: “The tit-for-tat would have to stop at some point.” That nuclear war would also eventually end hardly means we should launch. Disempowering the judiciary would skirt this problem—turning over the underlying political disputes to the democratic process, where they belong.

Court reform was originally a progressive idea. But conservatives have complained about the antidemocratic power of the Supreme Court for generations, placing them in the hard spot of explaining why they are against its reform now. True, Americans currently agree about very little. And it is fair to worry that Congress is dysfunctional, and that shifting more power to it is merely a recipe for more inaction. But progressives know, as their recent proposals of a Green New Deal and an ambitious H.R. 1 demonstrate, that legislative power is the sole means of political reform of the country. No court will enact these sorts of policies if Congress doesn’t—while too powerful a Supreme Court will pose an existential threat to any policy if Congress does. And even if creating a progressive coalition takes time and work, forcing ourselves to come to terms with one another as fellow citizens is a better choice than inviting a judiciary to do the job of democracy, and packing our energies into debating which judges should determine our common fate.