August 1, 2019

Supreme Court Expansion and the Future of Democracy

Aaron Belkin Director, Take Back the Court

Aaron Belkin is director of Take Back the Court and political science professor at San Francisco State University. Belkin appeared on the panel on Supreme Court reform at the ACS 2019 National Convention, where court expansion was one of several reform proposals discussed.

I was honored to participate in a plenary on reforming the Supreme Court at the recent ACS national conference. At the end of the session, I told the audience of nearly 1,000 that they have a unique opportunity to save American democracy. Because time was running out, I was not able to provide much context, so I’m grateful to ACS for giving me a chance to elaborate here, especially in light of Justice Ruth Bader Ginsburg's recent critique of court expansion.

Judicial reform rocketed onto the national agenda in February and March of this year after Pete Buttigieg said that he is open to expanding the Supreme Court. By now, 10 presidential contenders have stated that they are open to expanding the Supreme Court, including Senators Harris, Warren, and Klobuchar. As of late, however, the discussion has stalled somewhat as a result of a chicken-egg dynamic. None of the 10 candidates who have said that they are open to expanding the Court are willing to clearly and aggressively advocate for expansion, in part because polling on the issue is lukewarm. (Among Democrats, approximately one-third support expansion, one-third are unsure, and one-third oppose). As long as the candidates decline to explain why expansion is necessary, however, the polling will remain lukewarm. So, the conversation is stuck, and judicial reform has taken a back seat to other issues.

The unique opportunity for legal experts is to help the candidates transcend this chicken-egg dynamic by urging them to endorse court expansion whole-heartedly, and by explaining why restoring democracy requires expanding the Supreme Court. The candidates need to hear from legal experts, and they need to hear from them soon!

Legal experts should make three points to the candidates:
  1. As the Roberts majority made clear in its recent decisions on gerrymandering and border wall funding, the current Supreme Court will not allow Congress to restore democracy;
  2. While every judicial reform option carries risk, court expansion is the least risky of available options;
  3. Despite the desperate need to reform the Supreme Court so as to be able to take democracy back, none of the other court reform options currently under consideration will work. Court expansion is the only judicial reform option that has a chance of allowing Congress to restore democracy.
Let's take each point in turn.
  1. Whether one believes that democracy is on life support or that it has already died, many progressives agree that we are facing a “democracy emergency.” The story of our democracy emergency is complex, but the short bottom line is that when millions of black and brown people cannot vote, that is not democracy. When corporations and billionaires can purchase policy, that is not democracy. When millions of votes are wasted due to hyper-partisan gerrymandering, that is not democracy. And when Democrats are prevented from governing, even when they win elections, that is not democracy. The GOP has rigged the system via gerrymandering, voter suppression, dark money, judicial theft, unprecedented obstructionism, and a culture of lying, and winning at the ballot box will not bring democracy back.The *only* way to restore democracy is to retake control of the White House and Senate in 2020 and then pass an aggressive version of H.R.1. And the only way to do that is to kill the filibuster and expand the Supreme Court. If Congress passes an aggressive version of H.R.1 but fails to expand the Court, the Roberts majority will not allow the un-rigging of the system. So, the only path back to democracy requires Congress to expand the Court.
  2. There is no question that the GOP will respond to court expansion by packing the court at its next opportunity. But that would only get us back to where we are now, and the risk of escalating responses from Republicans is overstated. The GOP has already broken norms to steal the Court. Concerns about its efforts to do so again in the future shouldn’t prevent Congress from trying to fix the problem in the here and now. Expansion is the only way to restore the Court, and if the GOP steals it again, the country won't be any worse off than today. Cycling between Republicans stealing the Court and Democrats restoring it is far better than unilateral surrender.

    But wait. What if Democrats somehow manage to secure a SCOTUS majority via normal rotation? Wouldn’t the GOP respect that? Of course not. If Democrats secure a Court majority through normal rotation, the GOP will respond by packing the Court at its first opportunity. (Isn’t that basically what happened in 2016?)  But here’s the advantage of court expansion. If Congress expands the Court and restores democracy by banning dark money, voter suppression, and partisan gerrymandering and providing automatic voter registration as well as statehood to DC and an option for Puerto Rico to choose statehood, among other reforms, the Brennan Center estimates that 50 million voters would be added to the rolls. These voters would protect against continued efforts to rig democracy. Court expansion is the only reform that enables the un-rigging of the system and the restoration of democracy.
  3. Other judicial reform options such as term limits may look good on paper, but those options cannot work. The fatal flaw in other reform options is that between the enactment of a statute mandating reform and the point at which the reform started to have a moderating impact on the Court, the Roberts majority would strike down the statute. Court expansion, by contrast, is less vulnerable to challenge. While justices acting in bad faith can always make up reasons to strike down statutes they dislike, most scholars and experts agree that the constitutionality of a statute expanding the Court is not in serious question, and that an expansion statute is more constitutionally plausible than alternative reforms.

    As well, unlike other court reform alternatives, the new status quo of an expanded court would be in place right away. The process of new appointments can take place nearly simultaneously with the passage of a court expansion statute, minimizing the opportunities for legal challenge as there are no distant steps or actions to take. The same president and Senate that pass the law could nearly immediately confirm justices to the new seats. Accordingly, the new appointees would be presumptively on the Court constitutionally, and unwinding the appointments would be far more difficult than challenging appointments, or vacancies in the case of term limits, yet to be made.

    The window to make this case to the candidates is closing quickly, because the pivot from the primary season to the general election could be a moment when the Democratic nominee becomes less interested in progressive ideas. Legal experts need to make the case for court expansion now, and they need to urge presidential candidates to do what it takes to restore democracy.