The Volokh Conspiracy
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The retirement of Justice Anthony Kennedy and his likely replacement by a more conservative justice has stimulated liberal interest in the once-taboo strategy of "court-packing"—increasing the the size of the Supreme Court in order to get more ideologically favorable justices. If the Democrats can win the presidency and both houses of Congress in 2020, they can potentially increase the size of the Supreme Court from nine justices to eleven or more, and then use the new appointees to transform a 5-4 conservative majority into a 6-5 liberal one (or perhaps an even bigger one).
Ironically, the recent revival of interest in court-packing was first triggered by prominent conservative law professor Steven Calabresi's proposal for the GOP to pack the lower federal courts, last year, in a paper coauthored with Shams Hirji (I criticized the Calabresi-Hirji proposal here). Since Kennedy's retirement, however, the idea has, for understandable reasons, become popular in many quarters on the left.
But court-packing has serious dangers—particularly the risk that it would trigger a cycle of counter-packing in which both parties seize the opportunity to pack the Court whenever they simultaneously control the White House and both houses of Congress. The end result is likely to be the undermining of judicial review as an effective check on government power.
To avoid this danger, Yale law professors Ian Ayres and John Fabian Witt, in a Washington Post op ed, propose a strategy they believe will allow liberals to offset the impact of the Gorsuch and Kavanaugh appointments, without triggering a court-packing cycle. They call it "court balancing." While the idea is clever and interesting, it ultimately seems little more than court-packing under another name. If implemented, it is likely to create much the same dangers. Here's their description of the proposal:
The Democrats' court-balancing proposal for 2020 should commit the party to expanding the size of the Supreme Court by appointing two new federal judges who, by statute, would be designated to sit on the court for 18 years; thereafter, the constitutionally required life tenure would be served in lower federal courts. If Democrats took control of Congress and the presidency in 2020, the new administration would effectively have two Supreme Court slots to fill immediately. The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself.
The balancing plan would be a temporary intervention tailored to rectify the Senate's prior dereliction in the Garland nomination. It would not radically expand the Supreme Court, but it would place Garland, for a limited time, in the likely swing vote position he would have occupied had Senate Republicans permitted a confirmation vote in 2016. After 18 years, the statutory designation of these two judges to hear Supreme Court cases would end and the court would revert to nine justices.
By proposing the court balancing specifically to address the Garland travesty, Democrats would have a principled reason, subject to the American electorate's approval, for altering the size of the court.
The main difference between this plan and more conventional court-packing is that the new justices would only be allowed to serve for 18 years, as opposed to for life. But, of course, the Republicans could retaliate in much the same way: the next time they get control of the White House and Congress simultaneously, they could appoint their own new 18-year justices to offset those appointed by the Democrats. The Democrats, in turn, would retaliate for the Republican move. And so on.
While an 18-year term is a lot less than life tenure, it is more than enough to enable the new justices to decisively alter jurisprudence in the direction desired by the party that appoints them - and more than enough to help insulate dubious elements of that party's agenda from effective judicial review. Far from saving decisions such as Roe v. Wade (one of the main objectives of liberal court-packing plans), this strategy is likely to help gut them, by ensuring that they and other controversial liberal precedents limiting government power will be overturned whenever the GOP next controls both Congress and the White House.
Ayres and Witt argue that their "court-balancing" plan would not set a dangerous precedent because it would merely be "a temporary intervention tailored to rectify the Senate's prior dereliction in the Garland nomination" (referring to the GOP-controlled Senate's refusal to vote on Barack Obama's nomination of Merrick Garland in 2016). This, of course, is the same rationale used to justify more conventional recent Democratic court-packing proposals. Calling it "court balancing" rather than "court-packing" does not make the argument any stronger.
In my view, court-packing would be a dangerous escalation that goes beyond either what the Republicans did in 2016, or the various other nasty delaying tactics that both parties have increasingly used to try to stall judicial nominations they oppose over the last several decades (including Democrats blocking several high-profile GOP appellate nominations by using tactics similar to those the Republicans used against Garland). Ayres and Witt likely disagree.
But, for present purposes, it doesn't really matter what I think, or what Ayres and Witt think. What matters is how the "court-balancing" plan will be perceived by Republicans. If they agree that it is merely a one-time "temporary intervention" justified by the GOP's actions against Garland, then the Ayres-Witt ploy will work. But if they see it as a major escalation in the judicial nomination wars, then they will almost certainly retaliate in kind as soon as they get the chance.
I think it's pretty obvious that the overwhelming majority of Republicans (as well as many independents) are likely to take the the latter view. They won't be mollified by the supposed distinction between "court balancing" and "court-packing," in part because they really aren't all that different, and in part because they don't believe that blocking Garland was wrong in the first place. At best, the GOP might limit its retaliation to appointing two new 18-year justices of their own, as opposed to life-tenured ones. At worst, they could choose to escalate further, such as by appointing justices to longer terms, or by appointing a larger number of new justices than the Democrats added.
There are other possible objections to the Ayres-Witt plan. For example, it is not at all clear that appointing Supreme Court justices to 18 year terms is constitutional (a point the authors acknowledge). At the very least, such a move would be challenged in court, and the conservative majority in the Supreme Court might not be favorably disposed to upholding a measure that would dilute their own voting power. But the main problem with the plan is simply that it carries virtually the same risks as conventional court-packing. Indeed, it is a form of court-packing, in so far as its purpose is to change the ideological composition of the Court by increasing the number of justices.
There is one way to increase the number of justices without triggering a cycle of court-packing and counter-packing. It would be to combine an increase with a constitutional amendment fixing the number of justices on into the future. For example, the size of the Court could be increased to eleven, and then permanently fixed at that number. Alternatively, the Ayres-Witt plan could be combined with a proposal to permanently fix the membership of the court at nine after the two temporary justices' 18-year terms have expired. But any such amendment would require broad bipartisan support to pass. And that support will not be forthcoming if the amendment is packaged with a measure that would give the then-dominant party an obvious advantage in the form of two new justices they get to appoint at will.
I myself would be happy to see an amendment permanently fixing the size of the Supreme Court, thereby precluding future court-packing. I think it might well be worth the price of accepting two ideologically distasteful justices as part of the bargain. But committed partisan Republicans are unlikely to agree, and they will almost certainly have more than enough clout to bar any such amendment.
The same goes for Ayres and Witt's proposal to impose 18-year term limits on all future justices (an idea already supported by many other legal scholars). I would be happy to to see something like it enacted. But it has no chance of passing if combined with a partisan court-packing measure.
In sum, there is no magic bullet that will enable either Democrats or Republicans to stealthily pack the Supreme Court without risking retaliation in kind. The same goes for proposals to pack the lower courts, such as the Calabresi-Hirji plan. Hopefully, even in this age of dangerous polarization and partisan bias, cooler heads in both parties will see that.
UPDATE: For those interested, in this 2016 post, I summarized the history of Democratic senators refusing to hold votes on prominent GOP lower-court nominees and stating that they would act to block a Supreme Court nominee in the last year of a Republican president's term. This history does not, in and of itself prove that the Republicans acted properly in blocking Garland. But it does indicate that there was no established reciprocal norm under which judicial nominees were entitled to an up or down vote within a reasonable period of time. If the Democrats had already deviated from that ideal with regard to lower court nominees and indicated they would do so in the case of the Supreme Court, should the opportunity arise, Republicans had good reason to believe that stonewalling Garland was just part of the "new normal" that had been established over the previous two decades of judicial nomination battles.