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How two legal thinkers came around to supporting Supreme Court expansion

I’ve never previously advocated for the expansion of the Supreme Court, but my thinking has been heading in that direction for a while and for obvious reasons, especially after the Garland case.

The United States Supreme Court
The United States Supreme Court.
Erin Schaff/Pool via REUTERS

I used to be a bigger believer in the U.S. constitutional system of politics and government, as evolved, and its ability to shelter our poor, dear nation from the unavoidable stresses of partisanship.

Sadly, that’s pretty much over. I know which of our two political parties I blame for its demise, but that’s beside (or, perhaps, alongside) the main point for today. The main question for today is whether Democrats, while they control both houses of Congress, should expand the size of the court to add enough young liberals to tip the balance in favor of the kind of laws Democrats favor.

(By the way, if you are a Democrat, you may assume that any rejection of a Supreme Court nominee by a partisan vote in the Senate started with the Republican refusal to even vote on the nomination of Merrick Garland to fill a Supreme Court vacancy after the death Antonin Scalia. You are mistaken. The full history of court vacancies and rejections is longer and more bipartisan than that. Here’s a link that will get you the full history of nominations and results.)

I’m not sure Supreme Court politics can ever recover any trace of “above-partisanship-ness” after the Garland blow. I don’t know how or whether we ever get back to those days when many Americans believed the Court was to any degree “above politics.” It just ain’t, even though some writers occasionally attempt to show that it is.

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The question at the moment is whether Democrats, still seething about Garland — and that was a blatantly partisan hit job — might retaliate by expanding the size of the Supreme Court. If they do, they will be retaliating in part for Garland and for some of the recent rulings of the court, but also to create an expanded court more likely to be friendly to liberal laws.

I’ve never previously advocated for the expansion of the Supreme Court, but my thinking has been heading in that direction for a while and for obvious reasons, especially after the Garland case. You should think deeply and long before deciding how you feel about this.

But I rise today mostly to provide a link and recommend you read a recent, smart, Washington Post op-ed by two smart liberal-leaning attorneys, one, Nancy Gertner, and the other Laurence Tribe, a Harvard Law School professor and prominent commentator of legal affairs.

They write that they both “started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.”

They confess that recent events have caused them both to suffer a loss of “confidence” in the Supreme Court, as currently constituted and as it currently functions. They attribute the evolution of their views to what they term “the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.”

They describe the court, as currently composed of six conservatives nominated by Republicans and three liberals nominated by Democrats as a “Supreme Court that has been effectively packed by one party will remain packed into the indefinite future, with serious consequences to our democracy.”

Recent rulings by the current Court, Gertner and Tribe write:

…haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

I hope that’s enough (but not too much) to get you to read the whole piece, which can be accessed here, at the Washington Post.