Joe Biden is on record that he opposes court packing. Earlier this primary season, Biden explained, “I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
As it so happens, the former chair of the Senate Judiciary Committee knows what it’s like to rue a day thanks to Republican senators. Beyond watching conservatives play him like a fiddle during the Clarence Thomas confirmation hearings, Biden has lived long enough to see his offhand remark in 1992 that suggested that presidents should hold off on any hypothetical opening during the summer of an election year get morphed into “THE BIDEN RULE” that begot Mitch McConnell declaring that no nominees can be confirmed at any point during an election year… before deciding that nominees can now be confirmed so close to an election that we’re actually in the middle of early voting.
But that’s not stopping liberal circles from pressuring Democratic leaders, including Biden, to embrace a court-packing plan that would reverse the covert court-packing efforts of the last several years.
And Mitch McConnell couldn’t be more excited. Court-packing advocates are the latter day embodiment of Daffy Duck falling for the “shoot me now” gag.
It’s well passed time for Democrats to be more aggressive about fighting back against the abuses Republicans have committed in staffing the judiciary. But the problem with not fighting back for so long is you’re prone to get emotional and make mistakes.
The pitch for packing the courts operates on two levels. First, purely as a threat to force McConnell to back down on this nomination. Second, as an affirmative strategy to undue the damage done to the courts over the last four years.
As a threat, it presupposes that McConnell would rather trade a 6-3 conservative majority to maintain the current 5-4 majority with Biden replacing Ginsburg if he knew that a rash move now only becomes a 6-5 minority once Democrats finish packing the courts.
That makes some superficial sense, but misunderstands that Mitch McConnell is not intimidated by any of this. Mitch McConnell understands that the Senate as currently constituted gives Republicans a structural advantage that will keep them in a position to dictate the composition of the judiciary most years either by rubber stamping Republican picks — because there’s no real filibuster anymore — or squelching Democratic picks setting up functional court packing on the back end as they fill artificial vacancies. Would McConnell really complain if he trades a 48-year-old on the bench for an 11-justice court when he knows he just needs to wait for Tom Cotton or whoever they squeak into office down the road to make a 13-justice court? McConnell is playing the long game here.
And when McConnell calls the bluff, Democrats have to go through with it and that leads the country headlong into the chaotic hellscape of delegitimization that McConnell affirmatively craves.
The principle error Democrats make about Republicans is failing to grasp that the conservative proposition is that government is broken, not that they’re good at running it. Their victory condition is cynicism. The oft-misunderstood concept of “bothsideism” is a core part of the GOP strategy — push the Democrats into doing something the pushes the line and then use that as proof that the lines were never there. It’s worth remembering Mitch McConnell didn’t functionally blow up the filibuster until he got Harry Reid to do it first. McConnell can’t wait to be able to declare that there’s no reason he can’t expand the Supreme Court to 13 or 15 or 27 because the Democrats did it first.
For McConnell, court packing is closing a door and using a bazooka to open a window. He’s got his green light and all he has to do is wait and spend the next few years ginning up money and independent support by claiming that this was an unprecedented power grab and further proof that no one should trust the government.
So what can be done that repairs the busted judiciary without handing McConnell a loaded gun? Here are a few ideas:
Build pressure for staggered term limits: This has long been my preferred position. Democrats could amend the Judiciary Act to make the Supreme Court (and potentially much more of the federal judiciary) take mandatory senior status after a certain term. The most common model is 18 years, allowing the sitting president to get two picks every term and guaranteeing that the Supreme Court is a reflection — if a lagged one — of the will of the voters.
It also puts a stop to the bias against older judges because the cap ends any advantage to placing a 40-something on the Supreme Court and should temper — but obviously not eliminate — heavily partisan nominations because it’s no longer a literal life or death position.
Aside from the long-term advantages, if there’s any hope of halting the current confirmation, Democrats are going to have to rely on public pressure on embattled Republicans up in 2022. Susan Collins is all well and good right now but if she loses in November there’s no reason for her not to burn all her credibility during the lame duck. So it has to be the 2022 players and getting enough pressure on them requires a broadly appealing message independents in those states say “well, they had to replace RBG because the Dems were going to blow up the court anyway” and then the bluff is called and we end up in the “every administration adds more” cycle. Agitating around the stance that “all of these nomination fights are undemocratic and bad for the country so we should do something else and just let every president have two” is more likely to keep those people as part of a coalition pressuring those folks.
It flips the script. Now the ground of contestation is “elections” vs. “the vagaries of human lifespans” as opposed to “11” vs. “13.” The challenge in dealing with someone like McConnell who has a different set of victory conditions is taking the debate outside the duality of “whoever wins the next election controls.”
Professor Laurence Tribe has long been an advocate of a plan like this but recently told our old colleague Elie Mystal that he’s not so sure about it anymore:
For several years, I was inclined to favor term limits, but I’m increasingly doubtful that the Supreme Court, as currently composed, would agree that Article III can be interpreted the way it would have to be in order to make Supreme Court appointments terminable after a fixed number of years….
Essentially he’s saying that the current Court would push back and take the stance that forcing them into senior status violates the language affording them life terms in “good behavior.” Putting aside the power that building a popular coalition around this idea might have in swaying institutionalists like Roberts there are a few other ways to get over this hurdle.
Add justices… to make staggered terms work
Sometimes it’s not so much the policy but the reasoning behind the policy that matters. If the Court is going to resist action by Congress to define terms, then just start expanding the Court by one justice every two years and refusing to replace the old ones. It would lead to the Court growing in the short term and would result in a few years of even-numbered complements but these are surmountable problems. Indeed, the Republicans have already told us in 2016 that 4-4 splits are acceptable in the short term.
This has the advantage of blunting arguments that a term-limited Court is robbing justices of their offices after they’ve already been confirmed. They can hang around as long as they want but eventually we’ll be left with nine justices turning over routinely.
Nothing gets me more than seeing someone post about my idea before I get a chance to, but NYU Law’s Christopher Sprigman beat me to this one this morning. Jurisdiction stripping is rarely discussed but it’s fascinated me as a possible solution to an increasingly compromised federal judiciary since the early 2000s. Since Sprigman’s reasoning is far more nuanced than I was going to be — though he employs fewer Looney Tunes videos — I’ll defer mostly to his argument.
There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing.
How does this work? Well, it’s right there in the Constitution. Article III gives Congress broad latitude to declare certain issues beyond the jurisdiction of federal courts.
Sprigman presents this as an alternative to court packing that could resolve some of the biggest issues facing the next administration — environmental regulations, taxation, health care — in a way that doesn’t render legislation subject to a dead hand Supreme Court. As with packing, this can be exploited by Republicans down the road too, but unlike playing with life tenure, if voters don’t like a particular law, the challenge would be made at the ballot box and not the courthouse with immediate results.
Personally, I was planning to pitch this as a shield to rob the courts of challenges to the Judiciary Act amendments that Tribe is afraid of, but Sprigman’s more robust approach works perfectly well on its own too.
The point is, it’s viscerally satisfying to think that Democrats can “get tough” and “beat McConnell at his own game,” but the reality is he’s playing a different game. Democrats see a conservative court as an existential threat to the vulnerable. McConnell sees a liberal court as a temporary inconvenience for his donors who have to obey Clean Water regulations for a couple of years before the winds shift. His only real motivation is watching the norms holding back a full kleptocracy burn to ashes. So he’s never going to be “threatened” by any bluff and he’s certainly not going to be quelled by a packed court system. The map never leaves his mind and he knows it’s only a matter of time until he gets to flip it around. Don’t leave a loaded gun on the majority’s podium on the way out.
Because you’ll live to rue that day.
If We Don’t Reform the Supreme Court, Nothing Else Will Matter (The Nation)
How to Save the Law Without Packing the Court (Slate)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.