The Democrats’ Supreme Court Hail Mary

This is the progressive case for court packing in a nutshell: “If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again.”

A blue-tinged illustration of the Supreme Court building, shown with extra marble columns
Getty / The Atlantic

Updated at 10:11 a.m. ET on September 28, 2020.

It was only a matter of time, really. Ever since Senate Republicans refused to hold a vote on Merrick Garland four years ago, progressives have argued that Democrats need to wrest back control of the Supreme Court by packing it full of liberal justices. By the Democratic primary last year, the idea had gone relatively mainstream, and half of the presidential candidates expressed openness to it. Now, in the five days since Justice Ruth Bader Ginsburg’s death, calls from the left to pack the court have reached a volume that will be difficult for party leaders to ignore. Democrats have few options to try to prevent President Donald Trump from confirming his nominee, whom he plans to announce on Saturday. So they’re already gaming out how to get revenge.

If Trump confirms a new justice this year, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Senator Ed Markey of Massachusetts tweeted over the weekend. Democrats at various levels of seniority followed suit, including House Judiciary Chairman Jerrold Nadler and Representative Alexandria Ocasio-Cortez of New York. Even Senate Minority Leader Chuck Schumer seemed receptive: “Nothing is off the table next year” if the GOP tries to fill Ginsburg’s seat, he said.

Aaron Belkin, a political-science professor at San Francisco State University and the executive director of the think tank the Palm Center, is grateful to see prominent Democrats finally coming around to the plan he’s spent the past year trying to advance. In 2018, Belkin founded the advocacy group Take Back the Court in response to Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh.

The trouble for Belkin and other Democrats is their goal’s political feasibility—and not just because the party has to win the Senate and the White House first. Joe Biden has shown reluctance to eliminate the filibuster, which Democrats would need to do to pass a court-expansion law, and he is outright opposed to increasing the justices’ numbers, disinclined to take any radical action that would further exacerbate partisan tensions. “We need to de-escalate, not escalate,” he said during a speech in Philadelphia over the weekend. In a local-news interview last summer, he warned that Democrats would “rue” the day they packed the Court because Republicans would simply do the same the next time they were in power.

I talked to Belkin about these objections, and asked him to lay out the case for court packing—and the effect it might have on American democracy. Our conversation has been lightly edited and condensed for clarity.

Elaine Godfrey: How would Democrats go about court packing if they’re in power?

Aaron Belkin: It’s a straightforward process, but not a politically easy process. What would have to happen is that they would need to pass a bill [to expand the Court], which means they would need to kill the filibuster. [After the law passed through both chambers of Congress,] the president would have to sign it. Then they would nominate new justices. The court size has changed six times in American history, so this has been done before.

Godfrey: Let’s say that Trump’s new nominee is confirmed. What’s a good number that the Democrats could expand to?

Belkin: I would argue that the number is six. For each of the three justices he will have appointed, you would need two justices to nullify the effect of each illegitimately appointed justice. If you just appoint one for one, then you’re not nullifying the illegitimately appointed justices.

Godfrey: So, six more, you’re saying. A total of 15.

Belkin: Yes.

Godfrey: But wouldn’t Republicans do the same thing the next time they’re in power?

Belkin: This is perhaps the No.1 concern that’s been voiced, but it doesn’t stand up to scrutiny. A couple problems with this: The first thing is that the Court has already been stolen. If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again. It would probably take a generation—25 or 30 years—for the Democrats to get the majority on the Supreme Court back. If the Republicans steal the court, then the Democrats un-steal it. And if the Republicans steal it again, then the Democrats un-steal it again. It’s much better to have that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

Godfrey: But even if Republicans become “less radical” after Trump, won’t they still want to put conservative justices on the Court?

Belkin: Part of what I mean by de-radicalization is an acknowledgment that it was wrong to steal the court in 2016, and that when the Democrats un-stole the court, that was a necessary thing to do. There’s something called a “hurting stalemate” where both sides realize that, Okay, it’s been enough already; let’s reach an equilibrium. If Democrats un-steal it and unrig the system, and the GOP de-radicalizes, hopefully, wiser heads would prevail in the Republican Party. There’d be acknowledgment that, like, Okay, democracy does matter. And let’s play by the rules from now on. Even if Democrats do expand the court, there will always be Republicans who want to retaliate. But the point is that, ideally, in a de-radicalized party, those voices wouldn’t prevail.

Godfrey: It’s just really hard to imagine the Republican Party saying they “stole” those seats and were wrong for doing so.

Belkin: They’re going to lose elections if they don’t de-radicalize in a free and fair system. It’s already hard for them to win elections. Trump barely skated by in 2016. It might take a couple thrashings at the ballot box in a free and fair system for the wiser heads to prevail. But, again, if the system is unrigged, they can remain as radical as they are, but it’s going to be hard for them to win elections.

Godfrey: You’re arguing that, in order to save democracy, Democrats need to eliminate the filibuster, pass democracy reform, and expand the court. But that isn’t a given—not all Democrats are on board.

Belkin: If the party doesn’t win in 2020, and do those three steps, I would argue that democracy is effectively over. Yes, we will still have elections, and yes, Democrats will still win those elections from time to time. But Democrats won’t be allowed to govern when they win, because of obstructionism and stolen courts.

Let’s look at each step. It’s going to be hard to change the filibuster. But there has been incredibly widespread recognition among party leaders—including the most obstructionist opponents to filibuster reform like [Senators] Chris Coons and Joe Manchin—that [it] might have to go, because they’ve seen Mitch McConnell take obstructionism to historically unprecedented levels. What about the democracy [reform] bill? The first thing [Nancy] Pelosi did when Democrats took back the House, they dropped H.R. 1. The party is clearly committed to passing democracy reforms. It doesn’t mean it’ll happen, but it means that there would be a very, very, very large push.

Now what about court expansion? When I started [Take Back the Court], people thought the idea was nuts. There were zero organizations in favor of the idea. Fast-forward two years, even before Justice Ginsburg died: We have elevated the conversation to the point that 11 presidential candidates said they were open to court expansion; 17 major progressive organizations, including Sunrise [Movement] and NextGen, are calling for court expansion. We’ve moved the Overton window such that even the Democratic Party is committing on its platform to structural reform of federal courts.

That was before Justice Ginsburg died. Now, a few days later, Senator [Mazie] Hirono, Senator Markey, Representative Nadler, thought leaders like Heather McGhee [said they support packing the court]. Schumer said, “If McConnell fills this vacancy now, everything will be on the table.” That means court expansion is on the table. So I don’t think it’s an easy path. But it is a realistic path.

Godfrey: There are people who will say, “This is an explicit Democratic power grab!” What’s your response to that?

Belkin: That’s fucking bullshit. The Supreme Court is working to destroy democracy because the Supreme Court is a partisan court; the conservative majority is politicians in robes who are trying to help Republicans win elections. They don’t care about law. They don’t care about doctrine. They don’t care about fairness.

So, yes, it is the Democratic Party that would have to put in place the changes to restore democracy by killing the filibuster. It’s the Democratic Party that would come to change Senate rules, that would have to pass democracy bills like H.R. 1 and the John Lewis [Voting Rights] Act, and it would have to expand the Court because the Republican Party is trying to sabotage democracy. The point is to save democracy; the point is not to do a partisan power grab.

Godfrey: How would passing H.R. 1 make Republicans less radical?

Belkin: If [Democrats] do it right, they will provide automatic voter registration, ban hyper-partisan gerrymandering, put in place campaign-finance limitations, grant statehood to D.C. and the right of self-determination to Puerto Rico, provide a quick path to citizenship for law-abiding citizens, ensure the right of ex-offenders to vote. That’s what you would do to unrig the system. In a free and fair system, the Republican Party cannot win as often as it does. If you undo the cheating, either they lose or they de-radicalize.

Godfrey: What about other ways to reform the Court? During the Democratic primary, Pete Buttigieg proposed a different 15-justice plan to expand the Court. Others suggest term limits. Do you consider those viable options?

Belkin: We don’t have time for an academic conversation about alternatives, given that there’s no time left on the climate-change clock and that democracy is all but dead. Campaigning on simple, clear, straightforward ideas is important. Court expansion is something that everyone understands. Term limits look great on paper, but that’s not going to rebalance the courts. Term limits would not protect desperately needed change, like climate-change legislation, from [being struck down by] the Court.

Godfrey: Let’s say that we do get into this zigzag pattern. Democrats add six justices, and then Republicans add a few, and we go back and forth this way. The Supreme Court will end up having a couple dozen justices. Won’t that eventually degrade its legitimacy?

Belkin: If the Democrats kill the filibuster, pass democracy bills to restore democracy, and expand the Court, I would argue that a radicalized Republican Party is not going to be able to win elections and retaliate by packing the Court. So I guess I would question the premise of the question.

I was talking with a Harvard professor who hates my project. He thinks that Democrats have to adhere to norms, and he said to me, as painful as it is, the better option for Democrats is to “continue to allow themselves to get kicked in the face for 35 years” than to expand the Court. That’s how long it’s gonna take for the Democrats to get the Court back if they don’t expand it. I mean, do we have 35 years left on the climate-change clock? Do Black people who can’t vote have 35 years left when they shouldn’t be allowed to vote?