In a speech at Harvard earlier this month, Justice Stephen Breyer warned that expanding the Supreme Court would politicize the federal judiciary. Several of Breyer’s fellow liberals in Congress ignored his advice. A bill introduced in the Senate by Ed Markey of Massachusetts, and in the House by Representatives Jerrold Nadler of New York, Hank Johnson of Georgia, and Mondaire Jones of New York, would increase the number of justices from 9 to 13, creating four open seats for President Biden to fill.
At first glance, this attempt to restructure the court — the most dramatic since Franklin Roosevelt’s second term — might appear to prove Breyer’s point. But in fact, this is exactly why the framers were right to give Congress the ability to oversee the judiciary, and reform it if necessary. The lawmakers who introduced this bill recognize what many of the justices themselves do not: Thanks to years of manipulation by Republican Senator Mitch McConnell of Kentucky and Donald Trump, the judiciary has been packed without adding a single seat.
Expanding the court isn’t a threat to judicial independence — but it may be the last, best chance to restore it.
The federal bench has changed dramatically in recent years, and former Senate majority leader McConnell is the most effective court packer in American history. In 2009, as part of his scorched-earth effort to obstruct the Obama presidency, McConnell and his allies began filibustering nearly all judicial nominations. Even judges endorsed by members of the ultraconservative Federalist Society were blocked.
Thanks to the Senate’s arcane procedures, the best way to measure the frequency of filibusters is to count the number of cloture votes, or votes to end debate. Less than two years into his second term, President Obama’s nominees accounted for three times more cloture votes than those of every other American president combined. Then, in 2014, Republicans took control of the Senate and essentially ceased voting on judges altogether. Most egregiously, they refused to confirm Merrick Garland to the Supreme Court seat vacated by Antonin Scalia’s death nine months before the 2016 election.
The math behind McConnell’s obstruction was simple: Each seat held open during a Democratic administration meant one more seat for a future Republican president to fill. When Obama took office, 12 federal courts had enough unfilled judgeships to be considered “understaffed.” By the time Trump took office, the number of understaffed courts had more than doubled, to 29.
Once a Republican was in the White House, McConnell set about filling seats with the same ruthless determination he had once employed to keep them open. He slashed the minimum amount of debate time allowed on nominations from 30 hours to two. He eliminated the filibuster for Supreme Court nominees, speeding the confirmations of Neil Gorsuch and Brett Kavanaugh. Then, when Justice Ruth Bader Ginsburg died in September 2020, McConnell reversed the precedent he had set while blocking Garland, confirming Amy Coney Barrett on a party line vote just days before the presidential election.
As a result, Trump had the same number of circuit court and Supreme Court judges in one term as Barack Obama did in two. Trump appointed three high court justices — one more than his predecessor — despite serving for half the time. And Trump’s picks are not the kind of broadly acceptable judges that might have survived a Senate filibuster 10 or 20 years ago. Democrats have won seven of the last eight popular vote elections for president. But with voting rights, abortion access, and environmental regulations in the crosshairs, the court is now projected to lean further right than at any time since Roosevelt’s second term.
If all this was supposed to be independent from party politics, no one bothered to tell Republican politicians. During his first campaign, Trump became the first candidate to unveil a shortlist of potential high court picks, treating judges as though they were running mates or potential cabinet secretaries. In his final campaign rallies, as Barrett’s nomination was hurtling toward confirmation, he led the GOP faithful in chants of “fill that seat.” Even McConnell, ordinarily a savvy political actor, has broken form in recent years, boasting about “flipping” circuit courts from blue to red as though they’re swing states.
In other words, Republican politicians broke centuries of precedent and reshaped the judicial nomination and confirmation process, filling the bench with partisan allies who will advance their agenda. If that’s not court packing, nothing is. And because federal judges serve for life, there’s no way to reverse what McConnell and Trump have done to the integrity of the courts. The best that can be done is to mitigate the damage.
Which is where expanding the court comes into play. Without any of McConnell’s unprecedented power grabs, Garland would be serving on the court today, and the seat left vacant by Ginsburg would have been held open until after the election, giving liberals a 5-4 advantage, or a one-vote majority. Adding four seats to the court would give liberals a 7-6 advantage, cancelling out McConnell’s power grab but going no further.
Just as important, expanding the court would set a new precedent: If one party packs the courts, the other party will, when it is able, expand the courts to restore balance. This wouldn’t make court-packing impossible, but it would make it less enticing. If future Mitch McConnells know that manipulating the judiciary is unlikely to be effective, they’ll spend their political capital somewhere else.
Finally, whether or not the most recent bill to expand the court moves forward, Congress needs to reassert its oversight powers over the judiciary. The Constitution gives lawmakers the power to put in place higher ethical and conflict-of-interest standards for judges, demand that organizations who file legal briefs disclose their donors, and perhaps even institute a version of term limits that would require justices to rotate to lower federal courts after a certain length of service. These steps — or even just the possibility of these steps — is an important check on the judicial branch, particularly at a moment when conservative judges may be inclined to exercise their newfound power in unprecedented and irresponsible ways.
Packing the court is an act of arrogant lawlessness. Those behind this effort spit in the face of judicial independence.— Mike Lee (@SenMikeLee) April 15, 2021
Perhaps the best argument in favor of the court reform bill was made not by a Democrat sponsoring the legislation, but by a Republican opposing it. “Packing the court is an act of arrogant lawlessness,” tweeted Senator Mike Lee of Utah. He’s right about everything except verb tense.
Packing the court was an act of arrogant lawlessness. Americans — of all political ideologies — should work together to unpack the courts before it’s too late.
David Litt was a speechwriter for president Barack Obama and is author of “Democracy in One Book or Less.”