Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House. I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats. Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate. Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
Here is the column:
“Nothing is off the table next year.” Those seven words of Senate Minority Leader Chuck Schumer capture the “total war” declarations of the Democrats when asked about any nomination to replace Supreme Court Justice Ruth Bader Ginsburg before the election.
There is a type of liberation that comes from what military theorist Carl von Clausewitz called “absoluter Krieg”: “War is nothing more than the continuation of politics by other means. … For political aims are the end and war is the means.” The means raised with Schumer is a demand for the Democrats to pack the nation’s highest court with added members once they take control of the Senate.
House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”
Yes, it is as simple as it is senseless. It is a curious way to honor Justice Ginsburg by destroying the institution she loved. Packing the court is all about power, not principle.
Remember Franklin Roosevelt
As members and commentators have lined up to pack the court once Democrats take control of the White House and the Senate, I have been called about a plan that I first proposed over two decades ago to expand the court. This, however, is not my plan. It would expand the court for the wrong reason and in the wrong way. In that sense, it is more similar to the court-packing plan of President Franklin Roosevelt.
In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small. Moreover, unlike the considerable thought put into all of our other major institutions, the size of the Supreme Court was arrived at by virtual accident. The Constitution does not set the size of the court.
The first Supreme Court had just six justices, and when it convened in 1790 at the Royal Exchange Building in New York, only four justices bothered to show up.
Over history, the size of the court has fluctuated. Justices once “rode circuit” and sat as judges in lower courts, so when Congress added a circuit, it would add a justice. When a 10th Circuit was added in 1863, a 10th justice was added. In 1869, however, Congress set the court at nine members.
That’s it. No deliberative debate. No historical or political analysis. More thought went into the size of the Consumer Financial Protection Bureau than the size of the U.S. Supreme Court.
Notably, most of the other countries with substantially larger courts have them to avoid the persistent problem of our nation’s highest court in becoming practically a court of one with a swing justice. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.
However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.
This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.
Democrats just want muscle
Democrats want to simply engineer a majority in a raw muscle play after taking over the Senate and the White House. It is as raw and transparent as the FDR court-packing scheme. Faced with a conservative majority ruling against his New Deal legislation, Roosevelt called for up to six additional justices, one for every justice older than 70. That was basically the profile of the “four horsemen” blocking his measures.
Like the latest calls, the FDR plan was based on politics rather than principle. When the politics changed, the plan died. FDR dropped his plan as soon as he got what he wanted with a favorable majority. That is why the switch of Justice Owen Roberts in favor of a New Deal case became known as a “switch in time that saved nine.”
The expansion of the court should not be simply because Democrats do not like the fact that President Donald Trump got three nominations. This was always the risk for a number of aging justices. In 2017, I wrote that Ginsburg (who was the oldest member of the court and long battled cancer) was taking a huge gamble with her legacy by not allowing President Barack Obama to appoint her successor.
Before Ginsburg died, nine nominations had occurred in election years since 1900, and Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” Moreover, Ginsburg also opposed expanding the Court, but she is not being cited by liberals as the reason to doing precisely what she opposed as inimical to the functioning of the Court.
That does not mean that the Democrats are wrong in calling out the hypocrisy of Republicans who opposed any vote in 2016 (or conversely Republicans quoting Democrats who insisted that election year nominations are entirely appropriate in 2016). Senators can vote against the nominee on any ground, including the timing. However, nomination is still a constitutional prerogative being exercised for the 10th time in an election since 1900. It is no excuse to call for the packing of a court and destroying decades of tradition. It is the political equivalent of the Vietnam War goal of destroying a village to save it. This court will not be saved by packing it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley