Updated at 3:50 p.m. ET on October 4, 2020.
Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court.
For the past few years, court packing has largely been a fringe idea, promulgated by leftist scholars and activists infuriated by Senate Majority Leader Mitch McConnell’s refusal to hold Supreme Court confirmation hearings for Merrick Garland in 2016. For the most part, the Democratic establishment has been resistant to the notion, on the grounds that Republicans would someday surely try to respond in kind.
We understand these objections; until recently, we shared them, and dismissed court packing as institutionally corrosive and politically unserious. But no longer. The current battle over the Supreme Court changes the calculus; if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.
The constitutionality of court packing has never been in doubt. While the Constitution says that “the judicial Power of the United States, shall be vested in one supreme Court,” it doesn’t provide for the number of justices, which is set by Congress. For more than a century and a half, the legislature has refrained from exercising its statutory power to expand the size of the Supreme Court, which has been fixed at nine since 1869. It’s come close at times—most famously under Franklin D. Roosevelt—but the party in power has ultimately always rejected the potential short-term political gain of adding seats to the Court as coming at too high a cost to its long-term institutional credibility. The addition of justices by a partisan majority of Congress risks creating the perception that the Court is a political body, and that judges are mere functionaries of the party of the president who appointed them—a perception corrosive to public faith in the rule of law.
The Supreme Court has always posed what the constitutional scholar Alexander Bickel famously called the “countermajoritarian difficulty”: It exists within a democracy, yet consists of unaccountable justices with the power to overrule actions taken by elected representatives. But recently, the Court has come to more closely represent the interests of a powerful minority. Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.
But none of this necessarily meant that the number of justices on the Court should be increased—until now. The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work. Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.
Consider the nature of McConnell’s gamble. If Trump wins, there is little upside to the current rush to fill the late Justice Ginsburg’s seat; the Senate would easily be able to confirm Barrett just a few weeks later, and with far broader public confidence. However, if Trump loses, Republicans might not have enough votes during the lame-duck session to confirm Barrett, because a handful of Republican senators—in particular, senators from states that seem poised to break for Biden—could hesitate to so brazenly contravene the will of voters. As the New York Times reporter Maggie Haberman tweeted, “That Trump advisers and allies are pushing so hard to vote [on Barrett’s confirmation] before the election is a sign of how many of them believe he’s likely to lose.” This seems even truer now that McConnell is determined to push through with his original confirmation schedule despite the spread of the coronavirus among Senate Republicans. By forcing a vote prior to Election Day, McConnell is ensuring that electoral loss—which is to say, the public’s will—won’t prevent conservatives from filling the seat.
The Supreme Court is not a political body, but it is part of the democratic system, in which its justices are nominated by an elected president and confirmed by the elected Senate. This setup becomes more tenuous as presidential elections draw near. While it’s hard to identify a clear dividing line, at some point a presidential appointment to the Court is not an expression of democratic will, but a usurpation of citizens’ power—an attempt to use rapidly vanishing political control to capture enduring institutional strength unresponsive to the public. This is reflected in the clear majority of voters who believe the present Court vacancy should be filled by the winner of the presidential election.
In the history of the United States, only three Supreme Court justices have been nominated and confirmed in an election year by an incumbent who went on to lose. All three confirmations occurred more than 100 days prior to the election. Two took place in quick succession in the late 19th century. The most recent example, in 1932, was Benjamin Cardozo, a rare nominee who transcended partisanship. At the time of his nomination, The New York Times wrote that, “seldom, if ever, in the history of the Court has an appointment been so universally commended.” Unlike Cardozo, Barrett’s nomination has already provoked intense partisan rancor.
What’s more, never in modern American history has a defeated incumbent been allowed to fill a vacancy in the lame-duck period before leaving office.* In 1828, John Quincy Adams tried to make a nomination after losing to Andrew Jackson, but the Senate refused to vote and Jackson filled the seat. Presidents closing out their second term have not fared much better. Millard Fillmore, James Buchanan, and Lyndon B. Johnson all made doomed attempts, but again and again, the Senate refused, and the newly inaugurated president—Franklin Pierce, Abraham Lincoln, and Richard Nixon, respectively—ultimately filled the seat.
As the historical precedent makes clear, there is a way out of this situation that preserves the Court’s legitimacy and thus avoids the need for court packing entirely. Barrett should not be confirmed before Election Day—especially now that voting is under way in many states—and if Trump loses reelection, she should not be confirmed before the inauguration, either. Writing recently in Time, the conservative author David French articulated a path that is fair and preserves the Court’s legitimacy: Republicans should not vote to confirm a Trump nominee before Election Day or before the election has produced a clear winner. If Trump wins reelection, the Senate could proceed with voting on Trump’s nominee prior to Inauguration Day, as the public will have signaled its clear support for the current leadership. However, if Biden wins the election, then the Senate should decline to vote on Trump’s nominee and Biden should fill the seat. It is not too late to take this path, which is right for the country and the Court.
This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach. The latter strategy is what the law professors Joseph Fishkin and David E. Pozen call “asymmetric hardball”—a situation in which one party plays hardball and the other sits on its hands.
That will do little to restore the legitimacy of the Court, and risks falling victim to a kind of magical thinking—belief that legitimacy is achieved by simply pretending it exists rather than building broad public and political trust. As paradoxical as it sounds, a Democratic plan to add seats to the Supreme Court could be just what’s needed. This is what Pozen refers to as “hardball as anti-hardball”: that is, playing constitutional hardball not to win the game, but to get to a place where the cycle of retaliation and politicization can be ended.
This all depends on Democrats’ intention to add seats under a Biden administration—this must be a threat that Democrats really would follow through on. If Democrats can convince Republicans that confirming Barrett would result in additional justices appointed by a President Biden, perhaps Republicans would step back from the brink and refrain from confirming Barrett. But if she is confirmed, Democrats should add seats to the Court; the most common suggestion has been two, to balance out Republican appointments to Antonin Scalia’s and Ginsburg’s seats. This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands. It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.
The Democrats’ willingness to play hardball on court packing paves the way, under a Biden administration, for deeper structural reforms that offer more enduring mechanisms to reinforce the judiciary’s legitimacy. Current proposed legislation in the House would impose 18-year limits on Supreme Court terms, though it is an unsettled question whether this reform can be achieved through statute or requires a constitutional amendment. There are also proposals to limit the jurisdiction of the Court and to require juridical supermajorities to overturn legislation. All of these ideas could help place the Court at arm’s length from politics and restore its authority, but it’s hard to imagine why Republicans would assent to such proposals unless the party knew that Democrats were willing to play hardball right back. As Pozen writes, “Some of the most morally and democratically compelling forms of anti-hardball may be unattainable without the aid of hardball.”
Playing hardball does not mean destroying the game. A Democratic president overseeing an expanded Supreme Court would be wise to seek nominees with substantial bipartisan support. And there are formulations of Court expansion designed to reinforce legitimacy, such as the plan proposed by the legal scholars Ganesh Sitaraman and Daniel Epps under which five justices affiliated with Republicans and five justices affiliated with Democrats would then unanimously select five additional members from the existing circuit courts. Whatever route Democrats take to expand the Court, they must do so in conversation with the public, with every care paid to preserving civic trust in the Court itself.
* This sentence previously misstated the timeframe during which this was the case.