The US Supreme Court faces a crisis of legitimacy. Two stolen seats, numerous decisions that erode or erase fundamental rights, mounting evidence of misconduct and corruption. The Court’s ultra-conservative majority must be overturned. Congress has the power to add seats. The President can rebalance the Court.
And another President and Congress, united under an opposing party, could just
rebalance it again. A Supreme Court that can be inflated on a partisan whim is less independent and less legitimate. Don’t pack the Court. Pass a constitutional amendment that sets the size at 9 justices. Precedent favors that number.
Precedent points to 13, one per federal circuit. And precedent plainly favored a hearing for Obama’s replacement for Scalia in early 2016. Republican Senators balked.
Not in an election year, they said. They confirmed Trump’s replacement for Ginsburg a week before the 2020 election.
And the Senator now saying to ensure 9 justices by constitutional amendment? In 2016, he appeared content with 8 so long as a Democrat was President. Partisan whim gave us the Court’s current majority.
First, about one justice per circuit, it’s an outdated idea. Circuit riding ended over a century ago. Second, history is clear on election year SCOTUS nominees. When the Senate and President are divided, confirmation is rare. When they’re united, it’s the norm. Republicans followed precedent. They also fulfilled a campaign promise to confirm only principled constitutionalists.
Besides, the war on judicial nomination norms has been led by Democrats. The ideological blockade of Bork. The high-tech lynching of Thomas (in 1991, not 2023). Nuking the filibuster for lower court nominees. Ambushing Kavanaugh. Packing the Court would be just the latest escalation.
Nominating judges who’ll roll back rights for women and minorities, or who’ve been credibly accused of sexual harassment or assault, but who all got a hearing and a vote. Obstructing a historic number of judicial nominees despite a President and Senate united. Republicans are the aggressors. And if they’re the victors, the Supreme Court will remain an increasingly regressive, far-right institution disconnected from the popular will.
Fundamental rights aren’t decided by popular vote. Nor are they discovered by judges following a progressive political agenda. They are enshrined in the Constitution. Applying that document as originally understood and reversing rulings that don’t is the duty of the Court, a responsibility long entrusted to nine justices.
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
stealingseats from Democratic presidents to ensure a Court
drastically out of step with the American people.
- The Court’s
ultra-conservativemajority 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 crisisdebate, see Is the Supreme Court Facing a Legitimacy Crisis? For a scholarly analysis of the term
legitimacy,see The Supreme Court’s Legitimacy Dilemma.
- Republicans have politicized the confirmation process, including
The seats held by two Trump appointees, Neil Gorsuch and Amy Coney Barrett, are considered “stolen” by critics. See, for example:
The Court has been accused of
evisceratingthe Voting Rights Act and
shirking its responsibilityto end partisan gerrymandering. For more, see Why the Current U.S. Supreme Court Is a Threat to Our Democracy.
A federal right to abortion was eliminated in Dobbs v. Jackson Women’s Health Organization.
Other decisions have been said to harm worker’s rights: Supreme Court Decision Delivers Blow To Workers’ Rights.
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 …
Congress has shrunk or expanded the Supreme Court seven times, according to a statement by lawmakers seeking to expand the court. 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.
Contrary to charges of court
packing,an expansion would
rebalancethe 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.
Conservative critics of court expansion sometimes let liberal US 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.
Senator Ted Cruz (R–TX) remarks:
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.
By Republican lights, expansion politicizes and so, by Democratic logic, delegitimizes the Supreme Court. Senator Mike Lee (R–UT), author of a book opposing expansion, says: “If you alter [the number of Supreme Court justices], you will inevitably, unavoidably and assuredly end up politicizing the court.” Source: 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. Quoted in Biden dodges court-packing questions as SCOTUS nomination moves forward.
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.
Senator Josh Hawley (R–MO), co-sponsor of a constitutional amendment that cements the size of the Court, says we must
maintain the precedent of 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?
From liberal think tank Demos:
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.Laura Williamson. Myth Busters: The Facts About Supreme Court Expansion.
Similarly, from Rep. Jerrold Nadler (D–NY-12), co-sponsor of a bill that adds 4 seats to the Court:
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.
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 nomineesStatement of Constitutional Law Scholars on the Supreme Court Vacancy. (Hat tip Wikipedia)
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.
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
the height of hypocrisygiven Republicans’ refusal to give Obama’s nominee Merrick Garland a hearing months in advance of the 2016 presidential election. Sources:
From October 2016, via the Washington Post:
David Weigel. Cruz says there’s precedent for keeping ninth Supreme Court seat empty.
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.
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.
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.Christopher Scalia. Why do Democrats want 13 Supreme Court justices? Their answer doesn’t make much sense.
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.
Circuit riding was formally abolished by the Judicial Code of 1911. Source: Early Supreme Court Justices Ride the Circuit.
29 Supreme Court vacancies have opened up in presidential election years, according to 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.
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.
Robert Bork, a Solicitor General and later a DC Circuit Judge, was nominated to the Supreme Court by Ronald Reagan in 1987. Democrats rejected Bork mainly due to his
ideology and judicial philosophy, as opposed to his competence and qualifications,says conservative author W. James Antle III. The Editors of the National Review claim:
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.The Editors. The Left-Wing Assault on the Supreme Court.
Observers of Bork’s failed nomination coined the term
to obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them,per the OED.
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.Clarence Thomas. Statement Before the Senate Judiciary Committee.
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.
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.
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:
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.
[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. The Enduring Myth of Robert Bork, Conservative Martyr.
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.
On Republicans, Bork, and Garland, the NY Times Editorial Board writes:
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.NY Times Editorial Board. The Republican Party’s Supreme Court.
According to an analysis by PolitiFact, from 2009–2013 Republican Senators invoked cloture or
filibustered36 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.
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.
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 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@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.
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 beLegal Information Institute @ Cornell Law School.
fundamentalbecause 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.
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 also, from the Constitution Annotated, this brief note on judicial review and the
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 aJustice Antonin Scalia. OBERGEFELL v. HODGES, Dissenting.
fundamental rightoverlooked by every person alive at the time of ratification, and almost everyone else in the time since.
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 traditionwhen interpreting the Constitution.
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.
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 Traditiontheory 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.