Demonstrators on both sides of the abortion issue stand on the sidewalk in front of the Supreme Court in Washington, in June 2016, as the court announced several decisions. (Alex Brandon / Associated Press file photo)

Demonstrators on both sides of the abortion issue stand on the sidewalk in front of the Supreme Court in Washington, in June 2016, as the court announced several decisions. (Alex Brandon / Associated Press file photo)

Comment: Court-packing a bad idea but shouldn’t be ruled out

Just the threat of adding justices can promote moderation among the Supreme Court’s membership.

By Daniel Hemel / Special to The Washington Post

Both in the debates and on the campaign trail, former vice president Joe Biden and Sen. Kamala Harris, D-Calif., have refused to say whether they will seek to “pack” the Supreme Court if they win next month’s vote.

Onstage in Salt Lake City last week, Vice President Mike Pence hammered Harris for sidestepping the subject. “The American people deserve a straight answer,” Pence said. “And if you haven’t figured it out yet, the straight answer is they are going to pack the Supreme Court if they somehow win this election.”

Actually, we — the American people — don’t deserve a straight answer on court-packing. Biden and Harris are doing precisely the right thing by declining to back court-packing while also declining to take it off the table. The possibility of packing plays an important role in our constitutional system: Not only does it serve to check the court, but it also connects the court to the electorate.

So while President Trump told Fox News on Thursday that the Democrats’ dodge of the court-packing question is “disrespectful to the process and to the people,” that gets things backward. It’s Trump and Pence who are jeopardizing the court’s democratic legitimacy by demanding an anti-packing pledge.

Nothing new: “Court-packing” — adding justices to the Supreme Court to alter its ideological composition — is hardly a newfangled notion. The Constitution doesn’t fix the size of the court, and Congress has long understood that it can tinker with the number of justices. In 1801, for example, lame-duck Federalists sought to shrink the court’s membership from six to five to deprive incoming President Thomas Jefferson of an appointment. Jefferson’s congressional allies restored the court to six so that he could fill the next vacancy, then added a seventh justice in 1807. Congress tacked on an eighth and ninth seat in 1837.

That wasn’t the last time the court’s size seesawed. In 1863, President Abraham Lincoln and his congressional allies added a 10th justice, in part so that Lincoln could appoint another strong unionist to the bench. After Lincoln was assassinated and the much-reviled Andrew Johnson took office, Republicans in Congress cut the number of justices from 10 to seven so that Johnson would not have seats to fill. Once Johnson had left the White House in 1869, Congress restored the court’s size to nine, where it has remained ever since.

The fact that the framers left the court-packing power in Congress’s hands is not a bug of the American system; it is a feature. The possibility of packing bolsters the court’s sometimes-shaky democratic bona fides. Legal scholars have long wrestled with the so-called “countermajoritarian difficulty,” the incongruity of an unelected tribunal exercising unchecked power to strike down federal and state statutes. The court-packing option helps to make that difficulty less acute.

The threat is enough: When court-packing hovers in the background as a possibility, the justices will be less inclined to render decisions that are radically at odds with small-d democratic preferences. To be sure, Congress can influence the court in other ways; for example, cutting its budget, narrowing its jurisdiction or impeaching individual justices. But court-packing is a singularly powerful tool, as it allows a president and a bare majority in Congress to remake the court in its own image.

Court-packing is not only a check on the justices; it also, and as importantly, serves a legitimating purpose. Taking court-packing off the table might, as a practical matter, free the justices to decide individual cases to their liking, but it would saddle the justices with an even weightier burden. A tribunal of unelected judges serving for life will struggle to justify its authority in light of the nation’s democratic commitments. The best argument the justices have is that they are not beyond the political branches’ control: They rule only at the pleasure of the people’s representatives. Eliminating the court-packing option would make the court even more of a democratic anomaly, with a weaker claim to our obedience and respect.

Of course, the importance of the court-packing option is not merely a matter of political theory. The threat of court-packing serves practical purposes, too. Most famously, conservative justices on the mid-1930s court aggressively attacked President Franklin Roosevelt’s New Deal, sometimes stretching constitutional doctrines beyond their breaking point to strike down the programs of a president whose policies they disliked. FDR responded in 1937 with a proposal to add several new justices to the bench. The Senate ultimately rejected FDR’s plan, though only after the once-conservative court changed its tune and upheld a number of New Deal initiatives.

Historians still debate whether a “switch in time saved nine,” that is, whether then-Associate Justice Owen Roberts’s apparent volte-face on New Deal cases sapped the court-packing movement’s momentum and thus preserved the court’s size. We will never know Roberts’s true motives; and we will never know whether court-packing would have succeeded if Roberts hadn’t swung to the left.

A similar question hangs over the most recent Supreme Court term, when a different Justice Roberts — Chief Justice John Roberts — joined his liberal colleagues in a number of important cases involving investigations of President Trump, abortion access and gay and transgender employees’ rights. Did fears of court-packing under a future Democratic administration affect the chief justice’s votes? Absent a smoking gun that historians might find in Roberts’s personal papers, we will be left to speculate.

What we do know, though, is that as long as court-packing remains a possibility, the court’s power will not be absolute. And it should unnerve us if anyone in the American system wields absolute power.

The nuclear option: The upshot of all this is not that Democrats ought to pack the court if they win control of both chambers of Congress and the White House. Court-packing is a nuclear option: helpful to have and dreadful to invoke. It would intensify partisan rancor and invite Republican retaliation. If victorious Democrats add seats to the court in 2021, the GOP will likely do the same the next time it retakes Congress and the presidency. The court — which ideally serves as an equilibrating force — will become even more of a political football than it already is.

There is little indication that Biden and Harris would push a court-packing plan if Democrats retain the House and carry the Senate. But if, hypothetically, a 6-3 conservative court struck down signature Democratic initiatives such as the Affordable Care Act and clean-energy investments, should a President Biden, a Vice President Harris and allies in Congress consider court-packing in response? Perhaps. And they do no one any favors by forswearing the possibility in advance. They certainly would do no favors to the court as an institution by severing one of its strongest democratic links.

The Supreme Court occupies an unusual position in American law and life. Its most essential function is to check the political branches when they run roughshod over fundamental rights. But it is equally essential that the political branches be able to check an out-of-control court. The possibility of packing plays a nuanced role in maintaining this delicate balance. Which is to say: Don’t do it except as a last resort. But don’t rule it out, either.

Daniel Hemel is a professor at the University of Chicago Law School.

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