Democrats Can Do More Than Pack the Court
Mike Wiley 
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Democrats are reconsidering their relationship with the Supreme Court. In the wake of the failed Merrick Garland nomination in 2016—and amid a rushed effort to confirm conservative judge Amy Coney Barrett—some in the party are discussing familiar ideas to prevent a 6-3 conservative majority. Judicial term limits and partisan balancing requirements, both of which were part of Mayor Pete Buttigieg’s plan to “depoliticize” the Supreme Court, have seen renewed interest. Perhaps no single idea, however, has gained more traction than “court packing”—increasing the size of the Court by filling it with ideologically aligned Justices. Notably, Former Vice President and current presidential candidate Joe Biden has refused to say whether he supports the idea. But if he wins, and Democrats control both chambers of Congress, he would have the means and motive to make it happen.
Arguments in favor of court packing, though varied, tend to flow from concerns about the confirmation process. That is, Democrats have bemoaned (and yes, contributed to) increasingly politicized and vile nomination fights. Thought to have originated with Robert Bork’s 1987 nomination, these fights have only intensified in recent years, especially after Merrick Garland’s “stolen” Supreme Court seat in 2016. The days of the 96-3 Senate confirmation—the tally received by Justice Ruth Bader Ginsburg—are undoubtedly behind us. Furthermore, and more importantly, this polarization likely bleeds over into the Court itself, as evidenced by the growing number of 5-4 decisions.
Other proponents of court packing point to the inherently undemocratic system in which the confirmation takes place. Democrats have pointed out that, should Barrett be confirmed, a majority of sitting Supreme Court Justices will have been appointed by presidents who failed to capture their election’s popular vote. Moreover, these Justices will have been confirmed by the Senate, an institution which systematically overrepresents sparsely populated, homogeneous states which tend to favor Republicans. (Residents of Wyoming, for example, have nearly 70 times more Senate voting power than residents of California.) With these criticisms in mind, proponents describe court packing not as a way to empower Democrats, but more broadly as a way to democratize the Court.
Enter Professors Ryan D. Doerfler and Samuel Moyn. In a forthcoming paper in the California Law Review, Doerfler and Moyn call for an expanded and energized conversation around Court reform. Court packing, they argue, is a relic of the Roosevelt era; that President FDR failed to pack the court in 1937 does not make it a solution to 2020’s problems. More specifically, they argue that its proponents wrongly focus on who sits on the Court, rather than the power the Court is allowed to wield. Thus, they introduce a controversial and rarely discussed alternative: “Disempowering Reform.”
For Doerfler and Moyn, the Supreme Court functions very much like the famous William F. Buckley quote: it “stands athwart history, yelling stop.” They note that major progressive proposals—Medicare For All, the Green New Deal, Universal Basic Income—require both legislative and judicial approval. In the unlikely event one of these proposals passes Congress, the Supreme Court becomes yet another veto point—a safety net for conservatives who failed to prevent passage in the democratically elected branches of government. Moreover, conservatives’ most cherished ideas—banning abortion, defending gun rights, eliminating the Affordable Care Act—do not require legislative approval.
In this way, obstruction and gridlock are inherent to the Supreme Court, regardless of its political composition or the ferocity of its nomination fights. A more ideologically progressive court cannot help; at best, it can decide not to get in the way. Disempowering Reform, then, aims to redistribute power away from the Court and back to what Doerfler and Moyn call “the more democratically legitimate” branches of government.
The most popular form of disempowerment is called “jurisdiction stripping”—a controversial practice which bars the Supreme Court from reviewing specific legislation or topics. Jurisdiction stripping can vary in size and scope. Some proposals remove jurisdiction in both state and federal courts, and some ban review of all federal legislation rather than specific bills. A moderate proposal, for example, would ban the Supreme Court from reviewing the Green New Deal. A more ambitious proposal would ban all courts from hearing cases related to climate legislation.
This idea is not new. In 2004, frustrated with the Ninth Circuit’s opposition to the phrase “under God” in the Pledge of Allegiance, Representative Todd Akin (R-MO) introduced the Pledge Protection Act (PPA), a bill that would strip all federal courts, including the Supreme Court, from hearing First-Amendment challenges to the Pledge of Allegiance. The law passed the House of Representatives but failed to pass the Senate. To date, the PPA is the most successful of a long line of failed jurisdiction-stripping proposals, many of which arose in the 1970s in response to school prayer, abortion, and desegregation busing. Between 1935 and 1981, at least 64 jurisdiction-stripping bills were introduced in Congress.
Besides empowering the democratically elected branches of government, the benefits of jurisdiction stripping are twofold. First, unlike court packing, it avoids a response known as “spiraling,” or tit-for-tat retaliation from the opposition party. If Democrats pack the Court in 2020, Republicans will likely do the same when they regain seats in the House and Senate. It is easy to imagine how this situation “spirals” out of control, and the size of the Supreme Court fluctuates with each election cycle.
The beauty of Disempowering Reform, then, is that it disincentivizes future efforts to tamper with the Supreme Court. If the Court is barred from overturning federal legislation, partisans have less reason to fight to get their allies on the bench. That is, the rewards for doing so will be lessened. Though a party could try to re-empower the Court, such an effort could backfire and favor the opposition. Much more important would be the legislative battles themselves and the elections that precede them.
The second benefit is related to the first. Currently, few events inspire more chaos in American politics than the deaths of Supreme Court Justices. This chaos was felt in the days after Justice Ginsburg’s death, and Justice Scalia’s before that. By lowering the stakes of judicial confirmations—and raising the stakes of elections—Disempowering Reform can spare Americans this unnecessary incivility.
There are, of course, questions about the legality of such reforms. Judicial review is a long-standing power of the Supreme Court; attempts to remove it should not be taken lightly. Still, Doerfler and Moyn believe that they stand on solid ground. In addition to giving Congress control over the “inferior” federal courts, Article III of the Constitution gives the Supreme Court judicial power “with such Exceptions, and under such Regulations as the Congress shall make.” Despite this, the legal defense of jurisdiction stripping becomes more difficult with the size and scope of specific proposals.
Another caveat: Even if jurisdiction stripping is legal, there is no guarantee it will pass either the House or Senate. Americans’ confidence in the Supreme Court has been remarkably steady through the years, despite recent trends in politicization and polarization. It is not clear whether jurisdiction stripping—or any proposal that significantly alters the Court—would be politically popular. Joe Biden’s reluctance to take a stance on court packing only emphasizes this point.
Feasible or not, Disempowering Reform represents a bold expansion of the current Court reform discourse. Jurisdiction stripping is undoubtedly controversial, but perhaps this is not unlike the last four years in American politics. If Democrats win in November, they owe it to themselves to think clearly and critically about all their options, not just court packing.
Doerfler, Ryan, and Samuel Moyn. Forthcoming. “Democratizing the Supreme Court.” California Law Review. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032.
