The pressing want for courtroom enlargement
Focus on judicial reform
By Aaron Belkin
on March 12, 2021
at 11:00 am
[Ed. note: The prospect of adding seats to the Supreme Court has been a rallying cry for some left-leaning politicians and activists for years. When Democrats won the White House in November and narrowly took control of the Senate in January, those calls intensified. President Joe Biden has been non-committal but has pledged to study the issue. We asked two leading commentators, one on each side of the debate, to assess the prospects of court expansion and present their case for why it is, or is not, needed. The other piece in this series can be found here.]
Aaron Belkin is the director of Take Back the Court and the Palm Center and a professor of political science at San Francisco State University.
When I founded Take Back the Court in 2018, the battle to expand the Supreme Court was lonely. In the two years since then, dozens of organizations, elected officials and opinion leaders have come on board. But some of the toughest opposition came from the legal community.
This skepticism makes sense. For good reason, attorneys and legal professionals are socialized into the idea that courts must be as paramount, impartial, and legitimate as possible. Unfortunately, today’s Supreme Court barely lives up to the paradigm.
When Senator Mitch McConnell and the Republican Senate refused to consider appointing Judge Merrick Garland to the Supreme Court in 2016, they not only stole a seat, they robbed the court itself of some of its remaining legitimacy. Last year, when they broke their own cynically made-up rule against ratification of judges in an election year to validate justice to Amy Coney Barrett, they erased any facade the court holds on partisan struggle.
However, the attack on the independence of the court does not only come from outside the building. As many SCOTUSblog readers are likely to know, between 2005 and 2018 Senator Sheldon Whitehouse examined all 73 civil cases with separate decisions in which the Republican Party donors had a clear interest. The conservative majority sided with conservative donors all 73 times. In about half of these cases, the majority ignored, overturned, or circumvented conservative legal doctrine in order to make a decision favored by their fellow parties. That’s not called balls and strikes, and it’s not just conservative law. It is a court that acts as an extension of the Republican Party in all respects.
Democracy on the verge
The partiality of the court has particularly alarming implications for American democracy. Whenever I speak out in favor of expansion, I start with the reality that our democracy is in danger. Inevitably someone asks if this is an exaggeration. It is not.
Democracies cannot work if only one side is allowed to rule regardless of how people vote, or worse, if only one side believes in democracy at all. It is true that Democrats can still achieve election victories if they lose votes. But even then, a majority of House Republicans voted to overthrow the will of the people in the final presidential election, and the state’s Republican parties responded with an unprecedented spate of new electoral suppression laws and plans to move towards one in 2022 Gaining a House Majority This audience knows full well that the court is complicit in efforts to rig the system after giving the go-ahead to the suffrage law and partisan redistribution. And it will likely block recovery efforts as well as policy solutions to urgent challenges like climate change.
The only way to restore the court – and democracy itself – is to add seats, and the only window in which we can act is now. Therefore, I welcome this opportunity to address concerns I hear from well-meaning skeptics.
1. Even if Republicans broke the norms first, wouldn’t it be better for democracy if Democrats respect them?
It is wrong and dangerous to view the reversal of a broken norm as an act of breaking the norm itself. This would create incentives and anchor persistent normative violations. (In game theory, this is referred to as playing the sucker, although this is not about scoring points for the Democratic Party, but rather for democracy.)
As Professor Thomas Keck points out, there is a crucial difference between a constitutional hardball, which is supposed to strengthen democracy, and a hardball, which is supposed to strengthen it. By adding seats, we can ensure that the John Lewis Voting Rights Act, DC statehood, and so many other democratic reforms can survive.
2. Won’t the Republicans just retaliate and add more seats when they are in power?
The GOP has already stolen the court. If this happens again in response to the enlargement of the judgment, we will be no worse off than we are today. Even if the Democrats do nothing, the Republicans will surely grab the court the next time they have the need and opportunity to do so. We know this because Republicans have tried for years, and in some cases succeeded, to grab the state’s Supreme Courts. And because they were perfectly happy to change the size of the US Supreme Court (to eight) while it was taking to elect a Republican president.
3. Wouldn’t the Democrat-driven enlargement of the court exacerbate the problem of partisanship?
While the Democratic Party must drive judicial reform, settling a stolen, bipartisan court would actually reduce bias in the bank, as Democrat-appointed judges, by and large, do not behave like Republican-appointed judges. We analyzed 309 votes from judges and judges in 175 cases before the elections. Republican candidates voted to block access to ballot papers nearly 80% of the time. In contrast, Democratic candidates tended to vote progressively, preferring extended access to the ballot in 63% of cases. That still leaves 37% of the time Democratic candidates voted to abide by election restrictions – votes that would normally go against the interests of the Democratic Party. The figures suggest that judges appointed by the Democrats, while interpreting the law through the prism of their values, do so in an even manner, not just for the benefit of the partisans.
4. Why not a reform like term restrictions that feels less partisan?
I support term limits for judges. In addition to adding seats, there are a number of additional steps that would help strengthen the independence and integrity of the court. But none of the alternatives would immediately rebalance the court and end the illegitimate conservative court majority that threatens to derail much-needed democratic reforms and political solutions. The time limit alone would form a conservative majority for the foreseeable future and is therefore exposed to a high risk of being overturned by the court they want to reform.
5. Will Democrats Not Pay a Price in the Election?
Republicans are promoting this idea to scare Democrats. But when it came down to it, vulnerable Republican senators didn’t spend money talking about expanding the court as they wooed swing voters in 2020. This is in line with rigorous social science research which predicted that advocating the expansion of the court would not result in an election backlash.
6. How can the enlargement of the court survive a filibuster or win the support of moderate Democratic senators?
The policy of judicial reform and filibuster reform continues to change rapidly. In less than two years, the enlargement of the court has grown from a marginal issue to an important part of the national political conversation. It is now favored in most polls by a majority of Democratic voters and a large number of independents. Support will only continue to grow if Trump judges and judges put a wrecking ball on the widespread Biden agenda.
I don’t know exactly when the time will come for judicial reform to be a reality, but I know that we need to move the case forward and be ready when it does. And I know the SCOTUSblog community – some of the most passionate and competent legal thinkers and practitioners in the country – will be a vital part of our growing coalition. That is why I am so grateful for the opportunity to address some of your concerns and ask you to join us.
There really is only one choice: we can give ourselves a chance to avert a disaster. Or we can continue to play the fool while the United States continues to work towards a potentially authoritarian outcome.