Must the Supreme Court Expand to Be Legitimate?

Notes

1. The nation’s highest court today faces a crisis of legitimacy that began when Senate Republicans first abandoned norms and precedent to block the confirmation of then-President Obama’s Supreme Court nominee, Merrick Garland… [internal links ommitted]

   Sen. Ed Markey, et al. Sen. Markey, Rep. Johnson Announce Legislation to Expand Supreme Court, Restore its Legitimacy…

   Numerous legislators and commentators (see, e.g., CNN, The Nation, The New Republic, Brookings, The Brennan Center) have claimed the Court’s legitimacy is under threat. When announcing a bill to add four seats to the Court to restore its legitimacy, Democratic Congress members and progressive advocacy groups said the Court is politicized, unprincipled, and corrupt:

   • Republicans have politicized the confirmation process, including stealing seats from Democratic presidents to ensure a Court drastically out of step with the American people.
   • The Court’s ultra-conservative majority has jettisoned precedent, most notably Roe v. Wade, and issued unprincipled rulings that transparently serve conservative interests.
   • Some conservative justices have violated judicial ethics, furthering the Court’s manipulation by right-wing interests.

   For a quick overview of the legitimacy crisis debate, see Is the Supreme Court Facing a Legitimacy Crisis? For a scholarly analysis of the term legitimacy, see The Supreme Court’s Legitimacy Dilemma.

2. To address the injustice of stolen seats and broken trust, we must expand the number of justices on the Supreme Court…

   Alliance for JusticeKimberly Humphrey, Alliance for Justice. Quoted in Sen. Markey, Rep. Johnson Announce Legislation to Expand Supreme Court, Restore its Legitimacy…

   [The seat vacated by Antonin Scalia] was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority. [internal links ommited]

   New York Times Editorial BoardEditorial Board. The Stolen Supreme Court Seat

   Just 8 days…before the election…and just 15 days before the Supreme Court will hear a case that could overturn the Affordable Care Act, Donald Trump, Mitch McConnell, and their Republican buddies are shoving aside the wishes of the American people in order to steal this Supreme Court seat [vacated by Ruth Bader Ginsburg].

   Sen. Elizabeth Warren. Warren Delivers Floor Speech Opposing Barrett Nomination to the Supreme Court

3. [T]he Court…eviscerat[ed]…the Voting Rights Act in Shelby County … The Dobbs ruling on abortion overturned a fundamental right for the first time in the country’s history, a protection for women over a half century. It puts at risk all other privacy rights as well. 

   Brennan Center for JusticeMichael Waldman, Brennan Center for Justice. Interviewed in A Regressive Supreme Court Turns Activist

   With the Supreme Court shirking its responsibility, other strategies for getting fair [electoral] maps are more important than ever.

   Yurij Rudensky, Annie Lo, Brennan Center for Justice. Supreme Court Refuses to Stop Partisan Gerrymandering

   For more on rulings affecting democracy, see Why the Current U.S. Supreme Court Is a Threat to Our Democracy.

   Other decisions have been said to harm workers’ rights: Supreme Court Decision Delivers Blow To Workers’ Rights.

4. The Supreme Court is a cesspool of corruption…

   Rep. Cori Bush. Quoted in Sen. Markey, Rep. Johnson Announce Legislation to Expand Supreme Court, Restore its Legitimacy…

   Newsweek has a quick summary of five scandals facing the Court. Here’s the list, minus the details:

   • Scandal 1: Clarence Thomas’ luxury trips …
   • Scandal 2: Clarence Thomas’ $100,000 property deal …
   • Scandal 3: Clarence Thomas and 2020 election cases …
   • Scandal 4: Neil Gorsuch’s property sale …
   • Scandal 5: John Roberts’ wife working as a legal recruiter …

   Khaleda Rahman, JournalistKhaleda Rahman. Five Ethics Scandals Facing Supreme Court Justices and Their Spouses

5. Congress can determine the size of the Supreme Court; it has already added and removed seats on the Court seven times throughout its history.

   Sen. Ed Markey, et al. Sen. Markey, Rep. Johnson Announce Legislation to Expand Supreme Court, Restore its Legitimacy…

   For a quick and balanced overview of the history, open the final report of the 2021 Presidential Commission on the Supreme Court of the United States, and jump to A Brief History of Efforts to Alter the Size of the Court.

6. This extremist court has shown that it is not interested in advancing the equal administration of justice. It’s time to rebalance the Supreme Court to create one that is.

   Sen. Elizabeth Warren. Expand the Supreme Court

   Contrary to charges of court packing, an expansion would unpack or rebalance the Court, proponents say. Since conservatives gained a 6-3 majority, the Court is near the typical Republican and to the ideological right of roughly three quarters of all Americans, according to a 2022 study. (Hat tip Vox.) Democrats have complained that this ideological imbalance creates an imbalance of power that favors the Court over a liberal President and Congress.

   As of 2022, Biden opposes expanding the Supreme Court.

7. Conservative critics of court expansion sometimes let liberal Senator Bernie Sanders (I‐VT) make this point for them:

   My worry is that the next time the Republicans are in power they will do the same thing.

   Sen. Bernie Sanders. Quoted in Don’t pack the court

   The next guy comes in, maybe a Republican, somebody comes in, you have two more. [Eventually], you have 87 members of the Supreme Court. And I think that delegitimizes the Court.

   Sen. Bernie Sanders. Quoted in Congress’ history of messing with Supreme Court size

8. The Supreme Court should be independent, not inflated by every new administration.

   Sen. Ted Cruz. Sen. Cruz Introduces Constitutional Amendment to Cement Supreme Court at Nine Justices

9. By Republican lights, expansion politicizes and so, by Democratic logic, delegitimizes the Supreme Court.

   If you alter [the number of Supreme Court justices], you will inevitably, unavoidably and assuredly end up politicizing the court.

   Sen. Mike Lee. Quoted in Would the Supreme Court become a political body if it were expanded?

   Democrats have also worried that expanding the court will delegitimize it, according to Christopher Kang of Demand Justice (though Kang, in subsequent remarks, argues Republicans will leave Democrats no choice):

   One of the things that’s been holding Democrats back from supporting court expansion is they think it will make the court less legitimate or more political.

   Christopher Kang, ActivistChristopher Kang. Quoted in Biden dodges court-packing questions as SCOTUS nomination moves forward

10. See Sen. Ted Cruz Introduces Amendment to Block Packing of US Supreme Court. The proposed amendment reads: The Supreme Court of the United States shall be composed of nine justices.

11. The Supreme Court should be independent, not inflated by every new administration.

    Sen. Josh Hawley. Quoted in Sen. Cruz Introduces Constitutional Amendment to Cement Supreme Court at Nine Justices

    The number of justices has been nine since the enactment of the 1869 Judiciary Act. Source: Why does the Supreme Court have nine Justices?

12. The last 5 times that Congress has added seats to the Court, it has set the number to match the number of circuits … Today, there are 13 circuit courts, and so it makes sense to follow precedent and set the number of justices at 13.

    DemosLaura Williamson, Demos. Myth Busters: The Facts About Supreme Court Expansion

    Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws … simply did not exist, and did not require adjudication by the Supreme Court. But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression …

    Rep. Jerrold Nadler. Expand the Supreme Court…Restore Justice and Democracy to Judicial System

13. In response to the Republican Senate’s refusal to consider anyone Obama nominated to replace the late Antonin Scalia, The American Constitution Society, a progressive legal organization, wrote:

    [T]he Senate’s constitutional duty to ‘advise and consent’—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees

    American Constitution SocietyAmerican Constitution Society. Statement of Constitutional Law Scholars on the Supreme Court Vacancy (Hat tip Wikipedia)

14. Shortly after Scalia’s death, Judiciary Committee Republicans announced that no Supreme Court nomination hearings would occur until a new President took office. As Senator Mitch McConnell (R–KY), then the majority leader, put it: the American people should have a say in the Court’s direction.

    Republicans invoked the so-called Biden Rule, named for then Vice President Biden, who as a Senator once argued against holding Supreme Court nomination hearings during an election year. For analysis, see In Context: The ‘Biden Rule’ on Supreme Court nominations in an election year.

15. Ruth Bader Ginsburg died on September 18, 2020. Trump nominated Amy Coney Barrett on September 26, and the Republican controlled Senate confirmed her nomination on October 26. Democratic Senators called the nomination a sham, a power grab, not normal, and the height of hypocrisy given Republicans’ refusal to give Obama’s nominee Merrick Garland a hearing months in advance of the 2016 presidential election. Sources:

    • GOP pushes Barrett toward court as Democrats decry ‘sham’
    • Democrats lament Amy Coney Barrett pick but say ‘we can’t stop the outcome’

16. From October 2016, via the Washington Post:

    You know, I think there will be plenty of time for debate on that issue, said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. There is certainly long historical precedent for a Supreme Court with fewer justices.

    David Weigel, JournalistDavid Weigel. Cruz says there’s precedent for keeping ninth Supreme Court seat empty

17. Critics might actually prefer to call Republicans’ actions partisan manipulation, as Demos does, or partisan brute force, as the NY Times Editorial Board did in The Republican Party’s Supreme Court.

18. Democrats’ idea that the number of justices should equal the number of federal circuit courts ignores reforms to the judicial system over the past 100 years, says Christopher Scalia:

    In the court’s early years, justices made annual trips to their circuits. Riding circuit, as it was called, took the justices out of Washington for much of the year … The most significant reform came in 1869, when the same act that established the number of nine justices also created circuit court judgeships … In short, since the 1860s justices have had much less responsibility for the circuits they oversee.

    Christopher Scalia, AuthorChristopher Scalia. Why do Democrats want 13 Supreme Court justices? Their answer doesn’t make much sense.

    Circuit riding was formally abolished by the Judicial Code of 1911. Source: Early Supreme Court Justices Ride the Circuit.

19. 29 Supreme Court vacancies have opened up in presidential election years, according to Ted Cruz, who also claims:

    19 of [those vacancies], the president and Senate were of the same party … The Senate confirmed the nominee 17 of those times … How about when the president and the Senate are of different parties? Well, that’s happened 10 times. And in those 10 times, the Senate has confirmed the nominee only twice …

    Sen. Ted Cruz. Sen. Cruz Sets Record Straight on SCOTUS Precedent

    The Congressional Research Service reports that, prior to Scalia’s death, only 12 vacancies had arisen during a presidential election year prior to the election. 10 vacancies had a nominee in the same year. 6 were confirmed prior to the election. In just 1 of those 6, the President’s party differed from the Senate majority’s.

20. The American people elected a Republican majority in the Senate … In our elections, judicial nominations and judicial confirmations were front and center … So when Senate Republicans in 2016 exercised constitutional advise and consent authority to say, ‘no, we will not confirm a nominee from the outgoing Democratic president,’ that was consistent with our promises …

    Sen. Ted Cruz. Sen. Cruz Sets Record Straight on SCOTUS Precedent

    Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise [in 2020]. President Trump’s nominee will receive a vote …

    Sen. Mitch McConnell. Quoted in McConnell: Trump’s Nominee To Replace Ginsburg Will Receive A Vote In The Senate

21. Robert Bork, a Solicitor General and later a DC Circuit Judge, was nominated to the Supreme Court by Ronald Reagan in 1987.

    Democrats savaged Bork and rejected his nomination. The case against Bork rested heavily on ideology and judicial philosophy, as opposed to his competence and qualifications, which weren’t in doubt. [internal links omitted]

    W. James Antle III, AuthorW. James Antle III. Supreme Court packing via a Democratic bill will politicize the system even more

    The politicization of Supreme Court confirmation battles is an ongoing chapter in our national politics that began with the infamous 1987 Robert Bork confirmation hearings, in which Ted Kennedy demagogued one of America’s most conscientious legal scholars into a cartoonish demon for no other reason than that Roe v. Wade was thought to be on the line.

    National Review EditorsThe Editors. The Left-Wing Assault on the Supreme Court

    Observers of Bork’s failed nomination coined the term to bork, meaning to obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them, per the OED.

22. Clarence Thomas’s confirmation hearings were highly contentious. Speaking to the Judiciary Committee, he said:

    This is a circus. It’s a national disgrace. And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.

    Justice Clarence Thomas. Statement Before the Senate Judiciary Committee

23. See The Second ‘High-Tech Lynching’ of Justice Clarence Thomas, which refers to claims that Thomas has violated judicial ethics. Also, see Republican Senators’ defense of Thomas.

24. In 2013, the Senate’s Democratic majority exercised the so-called nuclear option, eliminating the filibuster for all nominations not to the Supreme Court. As a result, nominees could be confirmed by 51 Senators rather than the 60 needed to break a filibuster. See Harry Reid dealt first blow to filibuster, leaving Democrats to decide whether to kill it.

25. Brett Kavanaugh was nominated to the Supreme Court by Donald Trump in 2018. Kavanaugh’s supporters called his nomination hearings, in which he was accused of sexual assault, an ambush. For example, see:

    • Republicans blast Democrats’ ‘ambush’ on Brett Kavanaugh
    • An Eleventh-Hour Ambush
    • The #MeToo Kavanaugh Ambush

26. Previous escalations of the Supreme Court wars have taken Democrats from a place where Mitch McConnell voted to confirm Ginsburg to one where he wouldn’t grant Garland a hearing.

    W. James Antle III. Supreme Court packing via a Democratic bill will politicize the system even more

27. [Bork] wrote an article for The New Republic titled “Civil Rights—A Challenge,” in which he argued that forcing business owners to serve minorities is “a principle of unsurpassed ugliness” … Bork did not believe the Equal Protection Clause applied to women … He believed that poll taxes and literacy tests for voters were constitutional … He had ruled as a federal judge that an employer could force female employees to choose between being fired or being sterilized.

    Peter Shamshiri, AuthorPeter Shamshiri. The Enduring Myth of Robert Bork, Conservative Martyr

28. According to an analysis by PolitiFact, from 2009–2013 Republican Senators invoked cloture or filibustered 36 of Obama’s judicial nominees, the same number of judicial nominees subjected to cloture in all previous years.

    The Brookings Institution, a centrist think tank, has more on the filibuster’s history and proposed elimination.

29. The first six years (2009-2014) that Democrat Barack Obama held the Presidency, Democrats also controlled the Senate. Democratic Senators eliminated the filibuster for lower court nominees in Obama’s fifth year in office.

30. It was never about [Bork’s] supposed mistreatment [for Republicans] … Senate Democrats gave Judge Bork a full hearing … He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together … Compare that with Republicans’ 2016 blockade of Judge Merrick Garland … One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.

    Editorial Board. The Republican Party’s Supreme Court

31. Clarence Thomas was accused of sexually harassing one or more women, most notably Anita Hill, a former colleague of Thomas who testified against him at his confirmation hearing. Brett Brett Kavanaugh faced accusations of sexual misconduct, including sexually assaulting Christine Blasey Ford when the two were in high school. Like Hill, Ford testified publicly. The FBI investigated the allegations against both nominees.

32. America’s Declaration of Independence laid out a clear principle: Governments derive their legitimacy from the consent of the governed. The Supreme Court violates this principle. Republicans have controlled the Supreme Court for more than 50 years, despite losing the popular vote in 7 of the last 8 presidential elections.

    Take Back the CourtTake Back the Court. To Protect our Rights and Democracy, We Must Expand the Court

    5 of 6 conservative Supreme Court justices were appointed by GOP presidents who initially lost popular vote & confirmed by senators representing minority of Americans

    This is why we need to expand/reform the courts

    Ari Berman, JournalistAri Berman. @AriBerman

    According to Snopes, only 3 of the 6 conservative justices—Gorsuch, Kavanaugh, and Barrett— were BOTH nominated by a president who lost the popular vote AND confirmed by senators representing a minority of Americans.

33. Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment … These laws are said to be fundamental because they were found to be so important for individual liberty that they should be beyond the reach of the political process, and therefore, they are enshrined in the Constitution.

    Legal Information InstituteLegal Information Institute @ Cornell Law School

34. You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is … [S]imply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.

    Chief Justice John Roberts. Quoted in Roberts says Supreme Court will reopen to public and defends legitimacy

    However, see this brief note on judicial review and the counter-majoritarian difficulty from the Constitution Annotated.

35. In Obergefell v. Hodges, which affirmed a fundamental right to marry, the dissenting Justice Scalia quipped:

    The five Justices who compose today’s majority … have discovered in the Fourteenth Amendment a fundamental right overlooked by every person alive at the time of ratification, and almost everyone else in the time since.

    Justice Antonin Scalia. Obergefell v. Hodges, Dissenting

    Centrally, Scalia objected to the majority’s view that identifying and protecting fundamental rights requires courts to follow their reasoned judgment, potentially going beyond history and tradition when interpreting the Constitution.

36. The Court’s conservative justices tend to embrace originalism. As exemplified by Scalia, an originalist will rule based on what they consider the original public meaning of the Constitution’s text. Thomas, Gorsuch, Kavanaugh, and Barrett are avowed originalists. (Hat tip AP News.) Whether Roberts and Alito are too is debatable. Both did join Scalia’s originalist majority opinion in Heller, which affirmed a natural right to self-defense under the Second Amendment.

37. Dobbs v. Jackson, which in 2022 overturned Roe v. Wade, is an originalist victory, according to the conservative Manhattan Institute. But as the institute’s declaration acknowledges, conservative legal scholars disagree. Some see in Dobbs a new and distinct History and Tradition theory of the Constitution.

    Thomas displayed uncompromising originalism in his solo concurring opinion, calling on the Court to reverse rulings that used reasoning like that in Roe. These decisions include Griswold (right to contraceptive access), Lawrence (right to consensual sex), and Obergefell (right to marry). The majority opinion explicitly denies that Dobbs has implications for those decisions.