Packing the Court
Shameless political gamesmanship will ultimately be good for our country and the Court itself. Here’s why.
Could political game-playing be good for the Court—and the country? Plus, Biden’s likely nominees for Justice.
The Republican hijacking of the Supreme Court may actually turn out to be a good thing, but not for the reason you think. First there will have to be a war over packing the Court that will leave the institution bloodied and diminished—and that’s not altogether bad, either. The battlefield will be not constitutional law but game theory. The salvation for the Court—for both conservatives and liberals in the long run—will not be this or that justice, or even the chief justice who at least for a few more weeks will be the ideologically swing justice. Instead, look to Anatol Rapoport and Robert Axelrod.
Forty years ago, Axelrod, a political scientist at the University of Michigan, organized a computer tournament involving the Prisoner’s Dilemma. Rapoport, a University of Toronto professor, signed up. The game-theory experiment worked like this: Two accomplices—let’s call them Mitch and Don—are arrested and separately interrogated. Each can remain silent, or implicate the other. If either Mitch or Don betrays but the other stays silent, the betrayer goes free and the mute gets a harsh sentence. If each betrays, both get a short sentence. If both stay silent, each goes free. Rapoport demonstrated that the best strategy was the unintuitive, exquisitely simple tit-for-tat. You keep quiet the first time you play, but then copy whatever your opponent did just before. So, initially, the other guy gets the chance to cooperate, but thereafter you’re a sucker if you don’t adjust.
Joe Biden and Senate Democrats could learn from the game. They’ve spent careers trying to cooperate with Republicans, even as the Republicans have proven to be unwilling partners. In this real-life version of the Prisoner’s Dilemma, Biden and the Democrats keep expecting the other guy to behave differently—despite all evidence the other guy has learned that cooperation doesn’t pay. At long last, when it comes to the Supreme Court, it’s time to invoke tit-for-tat. Not chiefly because it will feel good to stick it to Republicans, but because it ultimately will work to the benefit of the Court.
Let’s review how the GOP commandeered the Court. Four years ago, within hours of the death of Justice Antonin Scalia at a hunting lodge in West Texas, Senate Majority Leader Mitch Mcconnell made an audacious announcement. He wouldn’t allow consideration of any nominee of President Barack Obama to replace Scalia. “This vacancy should not be filled until we have a new president,” Mcconnell said, in the middle of his Caribbean vacation. This was a gambit to un-pack the Court—to leave unfilled a vacancy during a
Democratic presidency. Mcconnell’s stance was consistent with his pledge early on in Obama’s tenure to subvert the president at every turn. There wasn’t a precedent for leaving a Court seat open that long. In February 1988, for example, Anthony Kennedy was confirmed by a Democratic Senate during the final year of Ronald Reagan’s presidency. And if Mitt Romney had won the White House in 2012, it’s inconceivable that Mcconnell would have held up a Court nomination in the twilight of a Republican administration. But in 2016 the GOP controlled the Senate and virtually all Republicans refused even to meet with Obama’s nominee, the widely admired centrist judge, Merrick Garland. The Scalia seat remained unfilled, until newly elected Donald Trump named Neil Gorsuch to it.
Even so, Biden, during this presidential campaign, has yet to fully take on Mcconnell and Senate obstructionists. Now, with
the death of Ruth Bader Ginsburg and the GOP embrace of Trump’s decision to ram a Court replacement through by Election Day—despite Mcconnell’s previous not-until-we-have-a new-president rationale—biden should promise to pack the Court beyond its current nine if he wins the presidency and if Democrats retake the Senate. The first presidential debate would be a bold place for Biden to announce it.
Contrary to popular belief, it doesn’t take a constitutional amendment to change the Court’s size. The Constitution mandates only the creation of a court and says its members shall “hold their offices during good behavior,” which has been taken to mean for life. That’s why there’s consensus it would take a constitutional amendment to institute term limits for justices. But the text of Article III doesn’t contemplate any specific number of seats on the Court. Text, as any card-carrying conservative will tell you, is the holy grail of interpreting the Constitution. So, changing the number requires only an act of Congress—easily accomplished if Democrats control the White House, the House and the Senate. Adding seats (or decreasing them by attrition) came to have a bad name after President Franklin Roosevelt proposed it in 1937. But Court-packing is neither ahistorical nor despotic. Indeed, Congress has changed the number of seats seven times—and those actions represent the best, truest control over the Court that citizens can exercise.
FDR’S plan was hardly an abject loser. Infuriated that so much
New Deal legislation had been declared unconstitutional by the Court, he proposed to expand its roster, adding one seat for each justice over 70½ (with a cap at six more justices). The plan was widely panned, but nobody knows what might have become of it. That’s because the Court soon began to uphold the kind of laws it had previously been striking down. One justice, Owen Roberts, reversed course. This was the so-called “switch in time that saved nine,” (though there’s no conclusive evidence he did so because he felt intimidated by any of FDR’S denunciations that went back several years). FDR also prevailed without Court-packing because he quickly got to replace a recalcitrant conservative, Willis Van Devanter, with Hugo Black. In office until his death in 1945, FDR ended up getting to fill all but one of the nine seats on the Court.
There’s nothing magical about nine. Yes, the Court has had that since 1869, but in the first century of the Republic the number yo-yoed repeatedly—from six to five to six to seven to nine to 10 to seven and then, in 1869, to nine. The presidents supporting such changes included John Adams, Thomas Jefferson, Andrew Jackson and a constitutionalist named Abraham Lincoln—not a radical among them. Their reasons could be overtly political. In the middle of the Civil War, the Republican Congress wanted to give Lincoln an extra seat. Only a few years later, legislators wanted to prevent his non-republican successor Andrew Johnson from getting any. After Ulysses S. Grant became president, the headcount went up to nine. Say what you will about such partisanship, but not only is it not anti-democratic, it’s just the opposite. It is the exercise of entirely unremarkable democratic prerogatives that the Constitution makes available. At the end of the day, as Larry Kramer, the former dean of Stanford Law School points out, “The Supreme Court doesn’t get the last word. We the people do.” Why would we want otherwise?
There are plenty of good arguments against Court-packing. Some were made in 1937. Undeniably, packing the Court would further politicize the institution. It would extinguish any notion about the “rule of law,” confirming that the Court is little different than the other branches of government. Court-packing would also raise the specter of a judicial arms race between successive Democratic and Republican administrations. The Court would become subject to ongoing manipulation, a seesaw based solely on politics—“not unlike Argentina under Juan Perón or Venezuela under Hugo Chávez,” as two Harvard professors wrote in their 2018 bestseller, How Democracies Die. Biden has bought that brief. During a primary debate last year, he said, “We add three justices. Next time around, we lose control, they add three justices.”
Alas, such arguments assume all parties are behaving in good faith. They’re not. Once that prisoner demonstrates he won’t play by cooperative rules, you can’t either. Even on the matter of manipulating judicial headcounts, Republicans have been unconstrained by notions of consistency. Several times in recent Democratic administrations, various GOP members of Congress have proposed “reverse-packing” lower federal courts. For example, an Arkansas congressman named Tom Cotton, in his pre-senate days, introduced a bill to cut the number of judges on the influential federal appeals courts in Washington. Cotton said he aimed to save the taxpayer millions. Wouldn’t you know it, though: He proposed the bill while Obama was president and there were vacancies on that court.
Although Court-packing would demolish a norm that has lasted 150 years, what the Republican Senate did to Garland and is set to do after Ginsburg’s death, is norm-shattering, too. If a Ginsburg replacement goes through before Election Day—or, in the case of a Democratic triumph, before Inauguration Day— packing the Court (along with eliminating the filibuster for legislation, which it would require) is the only rational response. It’s
It’s time to invoke tit-for-tat Not chiefly because it will feel good to stick It to republicans, but because itultimately will work to the benefit of the Court.
measured and proportional. And it would give Republicans the opportunity to sue for peace someday—after the Court roster is increased. Remember, the Axelrod experiment began with cooperation. It’s only after cooperation failed that tit-for-tat became the correct strategy.
You can admire Democrats for resisting a turn to the political Dark Side. You can admire them for not being as good as Republicans at being bad. But at a certain point—garland and Ginsburg and what more is on the way?—the propensity amounts to stupidity. Sometimes fighting fire with fire is the only way, until each side recognizes the flames will consume them all. Eventually, we can hope the combatants understand that bilateral disarmament is the only way to endure—and that we return to an era when rigid ideology isn’t the benchmark for Court nominations. Maybe both sides would figure it out in a few years, or maybe in 50.
To pack the Court successfully, given the 6-to-3 majority that conservatives will likely soon hold, Biden and a Democratic majority in the Senate would have to add four seats to create a presumptive 7-to-6 liberal majority. Fine candidates abound. Garland’s too old, tempting as it might be to put him on the Court. But the other three judges that Obama interviewed in 2016—50-year-old Ketanji Brown Jackson, and 53-year-olds Sri Srinivasan and Paul Watford—are good choices. So, too, would be Leondra Kruger, 44, of the California Supreme Court. Republicans would be powerless to stop any of it. Of course, down the road, when Republicans retook power, they could add two seats
of their own, for an 8-to-7 majority. And so it would go: Pack, counter-pack. In time, the justices might have to double up in their chambers and swap their custom chairs on the bench for squashed rows brought in from Spirit Airlines. So be it.
No matter how sweet the taste, retribution obviously isn’t sustainable as a governing principle for the Court. Partisan though many of its high-profile rulings frequently seem—too often you can predict the outcome of a case simply by lining up the justices appointed by Republican presidents on one side and their Democratic counterparts on the other—the Court derives legitimacy from the veneer of neutrality. But when its members come to be viewed as mere proxies for the partisans who put them there, the whole premise of an independent institution evaporates. Why have unelected, unaccountable deities issuing counter-to-popular-will thunderbolts from the Marble Temple on One First Street in D.C., if those justices seem to do no more than the bidding of their political patrons?
Chief Justice John Roberts, for one, appears to appreciate the problem. While he’s a resolute political conservative, he values the institution’s reputation. It’s why he issued his extraordinary rebuke of the president in late 2018 after Trump railed again about the federal judiciary. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice responded in a statement. Trouble is, that’s largely what we already have. Four key rulings in recent years were all decided on straight party lines: Heller, in 2008, manufacturing an individual’s right to bear arms under the Second Amendment; Citizens United, in 2010, unleashing big money into campaigns; Shelby County, in 2013, gutting the Voting Rights Act of 1965; and Rucho, in 2019, concluding that partisan gerrymandering was constitutionally fine-and-dandy. The Senate thievery of Scalia’s seat in 2016 and now the power grab on Ginsburg’s only underscore the current reality. Donald Trump’s lists of possible Supreme Court nominees contain many highly credentialed lawyers. That makes them qualified to serve, crow their supporters. But Ivy League degrees miss the point. These prospective justices are on a list because the president expects them to vote a particular way on big cases. Reasoning, logic, history, precedent and the other traditional tools of constitutional interpretation? They’re for chumps.
All that Court-packing would do is add the next logical beat to the politicization of the Court. The enrobed justices have been exposed for what they too often are—captives of policy predilections and the partisan muck that nominations to the Court have become. We the people lose trust. But here’s the upside. Maybe we stop going to the Supreme Court every time we want divisive social and political issues resolved. Maybe an enfeebled Court more regularly defers to Congress and gives leeway to states to settle matters—saving its imprimatur only for special cases like Brown v. Board of Education. Maybe we wisely realize that America relies far too heavily on the Court. Maybe the faith we lose in the Court is replaced by the faith that we can still govern ourselves. That’s not a liberal thing. That’s not a conservative thing. It’s a renewed commitment to sovereignty based on the will of the people.
→ David A. Kaplan, the legal affairs editor of newsweek in the 1990s, is the author The Most Dangerous branch: inside The supreme court in The age of TRUMP. His other books include The accidental president, about the tied 2000 presidential election and the perils of Bush v. Gore. He currently teaches journalism and law at NYU and the City University of New York (CUNY).