Making the Case for Court Expansion

Adding Justices to the Supreme Court is a political battle we can win

United States Supreme Court Building - Wikipedia

Days before the tragic death of Justice Ruth Bader Ginsburg, Senate Majority Leader Mitch McConnell went to the floor of the Senate to try to save his endangered Senate Majority. Theoretically McConnell could have laid out the Republican policy agenda. But this wasn’t really an option, because the Republican agenda of tax cuts for rich people paid for by cutting Medicare and Social Security is hated by just about everyone in America. Instead, McConnell tried to fear monger about Democrats making America more democratic, which is good for everyone except the political party that has won the popular vote once since the original versions of Murphy Brown, Roseanne, and Full House were on TV.

In his authoritarian rant, McConnell talked about the idea that Democrats might add Justices to the Supreme Court if they take the White House and Senate in November. This was a throwaway line that was barely noticed at the time, but that has all changed.

Democrats from Senator Schumer on down have opened the door to adding seats to the Supreme Court in response to Republicans pushing to confirm a Justice this close to the election. We are about to have a big national debate about expanding the Supreme Court. This is a fight McConnell wants, but it is one Democrats can win. The arguments are on our side.

Winning the Message War

The top priority for Democrats is to do everything in our admittedly limited power to stop McConnell from filling a seat vacated less than 50 days before an election (I have some thoughts on how). McConnell and his partners in Constitutional crime are going to try to excite their base and scare swing voters with the prospect of a President Biden (that was fun to type) and a Democratic Senate “packing the court.”

It is critical that Democrats keep expansion as a credible threat in the coming fight over the Ginsburg seat. It’s some of our only leverage. We can only do that if we win the message war with the Republicans over expansion.

I have been a supporter of court expansion since the Republicans jammed Brett Kavanaugh on the court and have spent the last several months working with Take Back the Court — the leading advocate for court expansion. So, I have spent a lot of time thinking about the issue and arguing with people about the merits for expansion. Based on that experience, here is some message guidance for the fight to come:

  1. Demystify Expansion: There has been little to no discussion of changing the makeup of the court for eighty years, so most people in American politics know nothing of the history or the law. Here are some facts that I have found to be very persuasive with skeptics:

    • The number nine is not in the Constitution. The founders clearly left the size of the Supreme up to the other two branches of government.

    • The process for expanding the Supreme Court is the same as the process for passing any law — all it takes is a majority of the House and Senate (pending filibuster abolition). It is no more complicated than naming a post office.

    • The size of the Supreme Court has changed many times over the years. Congress made it five justices in 1801. They expanded it to seven in 1807. In 1837, they made it nine. The Supreme Court was increased to ten in 1863. When President Andrew Johnson was impeached but not removed, the Congress reduced the size of the court to seven to prevent him from making lifetime appointments. Once Johnson was gone, it was changed back to nine. Changing the size of the court in response to a political crisis emanating from a corrupt President seems like a pretty relevant historical example.

  2. Compare and Contextualize: Expanding the Supreme Court is much more within the mainstream of American politics than Mitch McConnell’s decision to keep the court at only eight justices for an entire year and during a potentially contested election. Expanding the court requires duly elected public officials following a process outlined in the Constitution to take a vote on a piece of legislation.

    It would be one thing if the Republicans went through the process and then used their Senate majority to vote down Obama’s nominee. But that’s not what happened. McConnell abused Senate rules to prevent Obama’s nominee from even getting a hearing. No one had to take a vote or be held accountable. McConnell rigged the court in 2016. And he and Trump are trying to corrupt it beyond recognition.

  3. Own the Reform Message: In the long run, expansion should be part of a broader package of court reforms that includes:

    • Supreme Court Expansion.

    • Term limits: Lifetime appointments need to go. Justices are now getting appointed younger and serving longer. Strategically timed retirements like Kennedy’s have politicized the court beyond recognition.

    • A code of the ethics: Believe it or not, the Supreme Court does not have a code of ethics to prevent conflicts of interest.

    • Lower Court Expansion: Congress used to increase the number of Federal judges to keep up with a growing population and caseload, but politics have kept the number of judges static for a very long time.

  4. Don’t be Scared: Since I started talking about court expansion, I have been the recipient of a steady stream of admonitions about the politics of the court. I will note that these warnings always came with a lot of tired conventional wisdom, but they never came with any supporting data. A 2019 study sponsored by my friends at Take Back the Court found that Democrats talking about court expansion did not cause any sort of backlash among voters. I do not pretend that this an easy issue, but the politics are winnable with good, strong messaging. Voters respect strength. We must demonstrate it in this fight and beyond. Screaming from rafters about the dangers of a rigged conservative court and then not using the one power given by the Constitution to resolve it is not reasonable, it’s weak.

Regardless of what happens with over the next few weeks, I believe that adding two to four justices to the court is the only rational response to McConnell and Trump’s efforts to install minority rule in America. This is a battle I thought would come next year, but is here now and we have to win it.