How to Court-Pack Responsibly

If done right, packing the court will restore its legitimacy, not diminish it.

Reading Time: 9 minutes

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By Jonathan Schneiderman

Court-packing, the practice of adding or subtracting seats to or from the Supreme Court to manipulate its ideological makeup, gets a bad rap in American politics, in large part because of President Franklin Roosevelt’s 1937 attempt to add up to six justices to a conservative court that had frustrated his efforts to implement the New Deal and lift the nation out of the Great Depression. The Roosevelt plan, which may have been the impetus for Justice Owen Roberts to “flip” to making pro-New Deal decisions and prevent Congress from approving Roosevelt’s drastic measure (memorably mnemonized by Cal Tinney as “the switch in time that saved nine”), has been widely panned as one of the low points of an administration with generally favorable reviews.

This is a fair treatment of Roosevelt’s effort, which was a naked attempt to pursue specific policy ends through direct subversion of the Supreme Court’s constitutional power to interpret the law of the land, even if Roosevelt’s desperation was understandable in the context of the Great Depression. But its total overshadowing of court-packing discourse is unwarranted, and there is another historical instance of court-packing—a successful instance—that should be instructive to (lowercase-“r”) republican-minded people attempting to navigate the whirlwind surrounding the vacancy left by the tragic passing last Friday of Ruth Bader Ginsburg; may the memory of the righteous be for a blessing.

The radical Republicans of the late 1860s found themselves in a distressing and frustrating situation: in the aftermath of the Civil War, they had successfully abolished slavery with the 13th Amendment and had the means and desire to set up a biracial liberal democracy in the South, but President Andrew Johnson was throwing everything he had against them. Johnson, for whom the radical Republicans had initially had high hopes, turned out to be intransigent in his white supremacy and total disbelief in peaceful racial coexistence, and the ressentiment against the Southern planter class that had made him such a fervent unionist quickly turned him into a puppet of the class when its members lined up to kiss his ring early in his administration.

Johnson pushed against universal manhood suffrage and sabotaged the Freedmen’s Bureau. While radical Republicans were trying to maintain law and order (at the time a rallying cry of Black Southerners, who were regularly murdered and otherwise violently targeted for the crime of existing as free citizens of their own country) and transform the South from a slavery-dominated oligarchy to a political and economic democracy by keeping states under martial law until the infrastructure for that sea change could be implemented, Johnson was trying to fast-track the states lately in rebellion back to full union status, a step that would have meant reestablishing slavery in all but name. Johnson’s antagonism toward even moderate Republican Reconstruction policies radicalized the entire party, until congressional Republicans were regularly passing legislation such as the Civil Rights Act of 1866 over his veto.

The crisis was not simply one of policy, as Roosevelt’s would be seven decades later. Instead, it was a crisis of legitimacy and of governance. The radical Republicans were not trying to lift the country out of depression—they were trying to bring republicanism to a region that had known nothing of the sort. They had just won a war against the slavocracy, and had strong support from loyal Americans, including Black Southerners, to carry out their desired changes. At stake was not merely the future of the nation but its fundamental political nature, and the only thing standing in their way was a stubborn, petty, and vindictive President whose mandate was John Wilkes Booth’s bullet. If allowed to have any lasting effect on the country, Johnson would surely doom the project of Reconstruction, and the South would languish as a backward racial caste system sustained by terrorism and state violence for decades to come—as indeed it did, in no small part thanks to Johnson’s sabotage.

So they impeached and nearly removed Johnson. They ran General Ulysses S. Grant in the 1868 Presidential campaign, leaving Johnson without even a party to nominate him as the Democrats ran New York Governor Horatio Seymour. They sharply limited Johnson’s ability to appoint officials, especially the military commanders presiding over the South under the radical Reconstruction plan. And they packed the court. Unlike Roosevelt’s plan, their court-packing strategy did not consist of adding seats to the court—instead, they removed seats. By the Judicial Circuits Act of 1866, they limited the court from ten (Lincoln had added an extra seat during the war) to seven, so that when two vacancies opened up during the Johnson Administration, Johnson was unable to fill them. When Grant became President, Congress passed the Judiciary Act of 1869, restoring the court to nine seats.

This was court-packing, as much as what Roosevelt attempted, and it succeeded. Not only did it succeed, it was justified: it was a radical measure to be sure, but the Republicans’ was a radical situation. In breaking a norm, they preserved some amount of governance in a total and existential crisis for the nation. The radical Republicans understood that when part of the government is not only doing wrong but undermining government itself and threatening the continued existence of the republic, extraconstitutional methods are a legitimate and laudable means of protecting the same.

One implication of the radical Republicans’ court-packing for our times, then, is that court-packing can be acceptable, and it provides an example of the circumstances under which it is so. But there is another, darker way in which it is instructive: by expanding conventional thinking about court-packing, which tends to focus on Roosevelt and therefore to conceive of court-packing as defined by adding seats to the court, it can illuminate exactly what Senate Majority Leader Mitch McConnell did in 2016: he packed the court.

For those in need of a refresher, after Justice Antonin Scalia passed away in February 2016, just over three-quarters of the way through President Barack Obama’s second term, McConnell immediately took a stonewalling stance. “One of my proudest moments,” he said that August, “was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy.’” McConnell didn’t block Obama’s nominee by marshalling votes against him—he probably couldn’t have, since Obama’s nominee, Judge Merrick Garland, was a highly distinguished jurist with wide bipartisan praise to his name. Instead, he simply refused to hold hearings for him, letting the clock run down until Donald Trump won the November election. Eleven days after his inauguration, Trump nominated Judge Neil Gorsuch for Scalia’s seat, whom the Senate confirmed two and a half months thereafter.

McConnell offered two justifications for refusing to recognize Garland as a legitimate nominee. The first was the “Biden Rule,” articulated in 1992 by then-Chair of the Senate Judiciary Committee Joe Biden: when a seat opens up during an election season when the Presidency and the Senate are controlled by different parties, the Senate should not confirm the President’s nominee, because the division of the government reflects a national uncertainty that should be clarified by the election. However, though Biden did say that, it was not a “rule.” It was never acted upon, nor formalized by resolution. More to the point, Biden’s argument, even if taken as a rule that the Senate must follow, was explicitly focused on the late part of the election process when the general election is well under way. When Scalia passed away in 2016, it was less than two weeks after the Iowa caucuses, and Obama had nearly a year left in his Presidency.

McConnell also has pointed out that the last time the Senate confirmed a Supreme Court nominee from a President from the other party was in 1888, a farcical bit of sleight-of-hand since 1888 was the last time that there was an open Supreme Court seat during an election year when the Presidency and Senate were controlled by different parties. It’s not as if, between 1888 and 2016, there were a bunch of open seats in election years that the Senate didn’t fill. It simply never happened. McConnell’s rare exception, then, is not only not an outlier from the sample—it is the entirety of the sample.

All of which is to say that McConnell’s argument for stonewalling Garland had every bit as much validity as “the President can only appoint Supreme Court justices when Mars is in retrograde”: none. It was simply made-up.

What McConnell did to Obama was court-packing, in the radical Republican vein. By sealing off the seat, he effectively rendered it temporarily nonexistent, to be brought back for the next President (and perhaps not even then). But unlike the radical Republicans, McConnell wasn’t working to restore or create basic governance; he was working for simple partisan advantage. Justices appointed by Democrats hadn’t constituted a majority of the court since 1969, and McConnnell wasn’t going to let that happen.

McConnell’s gambit is not usually talked of as the court-packing it was. This is unfortunate, as if it were, it might shed some light on what we’re talking about when we discuss the prospect of Democrats packing the court. What we’re really talking about is Democrats unpacking the court, not for partisan gain but to restore the legitimacy that McConnell set ablaze in 2016.

Democrats’ strategy and messaging surrounding court-packing should reflect that. First, Democrats should make it clear that they do not want to pack the court, and that it will be a last resort if Republican Senators give them no other recourse for Garland. Democrats should offer a public olive branch to Republicans: Republicans can take Justice Ginsburg’s tragic passing as an opportunity to undo what they did in 2016 by letting the winner of the presidential election decide who will fill her seat and then passing a bipartisan resolution declaring that the President is the President for the entirety, not three-quarters, of their term, and shall henceforth be allowed to carry out all of their duties for the entirety of their term.

In the likely event, however, that McConnell et al. reject this plan—they now have the votes to push through a nominee before November—Democrats should make it clear that they will not hesitate to pack the court if granted control of the Presidency and Congress. They should cite as precedent the radical Republicans and emphasize above all that their goal is to restore what McConnell destroyed, not to seize control of the court. Republicans, of course, will still accuse the Democrats of acting for political gain, but Democrats can defend themselves in the court of public opinion by pointing to the fact that if they did pack the court, they would still not have a majority. If Democrats’ goal were to take control of the court, they would add four seats, creating a 7-6 court in their favor. By only adding two, they can signal that partisan gain is not on their minds.

Adding two wouldn’t just be good for optics, either (though the importance of optics in government should never be underestimated); it would also be the right thing to do. Republicans are entitled to a one-justice majority, and they would have one even absent McConnell’s 2016 mishegas. It’s not just that Democrats should want to appear without partisan motivation for court-packing—their court-packing should be genuinely grounded in a desire for legitimate government and a recognition that that has been lost vis-à-vis the Supreme Court since 2016.

One might fear—as many liberals to whom I’ve spoken in the last four days do—that court-packing on the Democrats’ part will only beget the same on Republicans’ part. But Republicans don’t need any impetus to court-pack—they’ve already done it. Letting them get away with it in the hopes that they won’t do it again is a bad way to avert it in the future; appeasement is not a viable political strategy. One might then distinguish between Republicans’ 2016 court-packing and hypothetical future Republican court-packing by arguing that the former was not seen as court-packing but that the latter would be, and that Republicans wouldn’t feel emboldened to do the latter unless the Democrats “started it” in the eyes of the public. But Democrats are not powerless before the whims of public discourse, and by framing the stonewalling of Garland as the court-packing that it was, they could frame their own court-packing as their tat to the Republicans’ tit.

If they successfully steered the conversation in that direction, Democratic court-packing could render the two parties even in the eyes of the public and provide an optics-based incentive for the parties to publicly bury the hatchet, pass a resolution declaring that the Senate will hear future election-year nominees, and maybe even pass a judiciary act not to fill the next two vacancies, eventually shrinking the court back down to nine justices.

Legitimacy can be restored to the court. It must be restored to the court. But the path there does not lie in timidity, in appeasement, or in pretending that Mitch McConnell did anything other than subvert the Constitution when he denied advice and consent to the duly elected President of the United States. Democrats don’t have to take partisan court-packing lying down. They shouldn’t.