Court Expansion Is the Pathway to Nonpartisan Court Reform

Recently, asked about Democratic calls to expand the Supreme Court, Joe Biden suggested that he will create a bipartisan commission to study recommendations about how to reform the federal courts. Bipartisan court reforms, however, are destined to fail. This is because any effort to make the courts less partisan would require Republicans, who now hold ironclad control over the judiciary, to relinquish substantial power. As a result, the only way to achieve bipartisan support for court reform is to take away (or credibly threaten to take away) Republican dominance of the judiciary. Thus, though it appears counterintuitive at first glance, the most realistic pathway to make the Court less partisan is partisan Court packing.

The Supreme Court, as currently constituted, is extraordinarily partisan. Its voting rights decisions facilitate perpetual Republican rule, and it often prevents Democrats from governing even when they do attain power. It would be comforting if this moment in time was an aberration, but it is not: the Supreme Court has a long and sordid history of allowing systematic disenfranchisement of vulnerable communities, and overturning laws designed to help those communities. Amy Coney Barrett replacing Ruth Bader Ginsburg portends that this era of partisan conservative jurisprudence will only get worse. Even more alarming, the Supreme Court is likely to remain conservative for generations, assuming Republican justices continue their previous practice of timing their retirements to coincide to when Republicans have the power to choose their replacement.

Given this state of affairs, and the brazen levels of hypocrisy on display as the Senate races to confirm Barrett in time to review any election-related dispute and to overturn the Affordable Care Act — the most significant Democratic policy achievement since the 1960’s — it is unsurprising that many Democratic voices have suggested expanding the Supreme Court and/or making changes to ensure that it acts in a less partisan manner. But, because the Supreme Court is a partisan institution controlled by Republicans, any reform limiting its partisanship would require Republicans to cede a significant amount of power. As a result, any reform of the federal judiciary that requires bipartisan support — as any constitutional amendment would— is a fantasy.

That being said, without taking a position on any of the proposed nonpartisan reforms (I haven’t looked closely enough at any of them), I believe there is a realistic path to their implementation. Expanding the Court can provide a pathway to bipartisan good-governance court reform. If Democrats can change the Supreme Court’s partisan status quo, or credibly threaten to do so, so that conservatives can no longer count on controlling the Court in perpetuity, then Republicans may be willing and even eager to agree to reforms that restructure the Supreme Court in a neutral, nonpartisan way.

For example, if Democrats expanded the number of justices on the Supreme Court to 15 and promised to appoint justices with legal philosophies that align with democratic freedoms and Democratic policy preferences, such a scheme would completely alter the Court’s partisan makeup. Rather than being a conservative bulwark against progressivism for the next 50 years, the Supreme Court could provide a backstop to prevent regressive and reactionary priorities, and protect citizens from systematic disenfranchisement. Faced with the threat of this change, Republicans may be willing to agree to neutral, good-governance changes to the Supreme Court that diminish Republican power, but would represent a lesser loss than losing the Court entirely.

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So, how should Democrats go about achieving nonpartisan Court reform?

To begin, Democrats are right to be worried a bit about the pushback they will receive for engaging in what Republicans and their allies will inevitably portray as a power grab. But, Democrats should also understand that because even nonpartisan court reform would diminish Republican power, Republicans will fight even nonpartisan good governance measures tooth and nail. And as the past few months and years have made abundantly clear, Republican will have no qualms about making bad faith arguments. Accordingly, Democrats should not be dissuaded by Republican opposition to Court expansion.

Nevertheless, I believe that Democrats are less likely to face pushback from the electorate if they make it abundantly clear that efforts to expand the Court are only being done to respond to prior Republican Court-packing, and as a means to achieve nonpartisan Court reform, not as an end in of itself. Thus, Democrats should give Republicans (and Republican-controlled states when court reform inevitably requires a constitutional amendment) every opportunity possible to support nonpartisan reform so long as they do not give up their leverage to expand the Court should Republicans decline the olive branch.

So, if Democrats win the House, Senate, and Presidency, they should introduce nonpartisan judiciary reforms at the same time they introduce legislation to expand the Supreme Court and federal judiciary. When they introduce these measures, they should announce that if the nonpartisan court reforms do not pass within a reasonable deadline (maybe within a year), they will pass the Court expansion plan and change the ideological balance of the Court. If the nonpartisan court reforms have not become law — which would probably require states to ratify any constitutional changes — within the deadline, Democrats can expand the Court and alter the complexion of the judiciary. If the reforms are enacted, then Democrats can abandon Court expansion. In short, so long as Democrats can credibly threaten Court expansion, they could force Republicans — and Republican state legislatures — to choose between reducing the partisanship of the Court and partisan Democratic control of the federal judiciary for generations.

With that in mind, Democrats must act quickly if they win the House, Senate, and Presidency. As Democrats have hopefully learned after humbling defeats in 1994 and 2010, a dramatic rebuke of Republicans in one election does not guarantee more than two years of Democratic control over Congress. Meaningful court reforms would probably require constitutional changes, and Democrats will need to set a timeline that affords them enough time to expand the Court and fill the newly created seats should the nonpartisan not be enacted/ratified by their deadline. Moreover, Democrats would be wise to set the timeline so that it ensures that Republicans will not have a partisan majority on the Supreme Court when it begins hearing disputes related to the 2022 election, lest the Supreme Court abet disenfranchisement and suppression that will likely be at the core of Republican electoral strategy to regain control over at least one branch of Congress.

If Democrats delay making their proposals, they risk losing their leverage to force Republicans to engage in the process. But, if done correctly, Democrats could use the threat of court-expansion to force Republicans to choose between long-term minority status on a partisan Supreme Court (at least until Republicans can repack the Supreme Court), or nonpartisan federal courts. Refuse to consider Court expansion though, and Democrats have no realistic pathway to getting bipartisan support for meaningful court reform.