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The death of Ruth Bader Ginsburg and Mitch McConnell's cynical reversal of his Obama-era prohibition on confirming a new Supreme Court justice in the waning days of an administration has kicked off a lot of interest in the possibility of "packing the court."
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The number of Supreme Court justices is not spelled out in the Constitution: rather, it is the subject of federal law, and a new Congress, Senate and President could in theory pass a new law, expanding or contracting the number of judges - we could have a 21-seat bench!
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How this could play out is complicated. @henryfarrell's history of FDR's threat to pack the court rebuts the idea that court-packing undermines democratic norms, arguing that the threat itself tamed the court and made it pliable to the New Deal.
https://crookedtimber.org/2020/09/19/the-supreme-court-and-normcore/
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https://crookedtimber.org/2020/09/19/the-supreme-court-and-normcore/
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The court's power comes from its legitimacy; even the alleged "textualists" (who say their only job is to strictly hew to the text of the Constitution) are secretly consequentialist (ruling on the basis of how their judgments will be perceived by the public).
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To rule without regard to consequence is to undermine the court's legitimacy and thus its power.
Farrell: "Norm maintenance requires not just that political actors worry about the chaos that will ensue if the norms stop working."
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Farrell: "Norm maintenance requires not just that political actors worry about the chaos that will ensue if the norms stop working."
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"It also relies on the fear of punishment – that if one side deviates from the political bargain implicit in the norm, the other side will retaliate, likely by breaking the norm in future situations in ways that are to their own particular advantage."
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More explicitly: "Norms don’t just rely on the willingness of the relevant actors to adhere to them. They also rely on the willingness of actors to violate them under the right circumstances. If one side violates, then the other side has to be prepared to punish.
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"If one side threatens a violation, then the other side has to threaten in turn, to make it clear that deviating from the norm will be costly."
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This view is not unique to Farrell. Writing in the @latimes, Erwin Chemerinsky, Dean of UC Berkeley Law, concurs: "The threat of increasing the size of the court to 13 might be enough to discourage Republicans from their dirty tricks.
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"But if they do it anyway, and the November election produces a Democratic win in the White House and a Democratic majority in the Senate, Congress would be totally justified in increasing the size of the court."
https://www.latimes.com/opinion/story/2020-09-18/op-ed-democrats-have-a-secret-weapon-to-thwart-a-rapid-ginsburg-replacement-they-should-use-it
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https://www.latimes.com/opinion/story/2020-09-18/op-ed-democrats-have-a-secret-weapon-to-thwart-a-rapid-ginsburg-replacement-they-should-use-it
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But FDR isn't the only president who bypassed the Supreme Court. Lincoln faced down a court packed with pro-slavery justices - the bench that denied Dred Scott standing on the basis that Black Americans "had no rights which the white man was bound to respect."
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Writing in @jacobinmag, @karpmj describes how Lincoln tamed the court by delegitimizing it, with New York papers declaring that the Supreme Court was a "a self-disgraced tribunal."
https://jacobinmag.com/2020/09/abraham-lincoln-supreme-court-slavery
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https://jacobinmag.com/2020/09/abraham-lincoln-supreme-court-slavery
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Lincoln-supporting legislators like William Seward introduced legislation to weaken the court's power: "Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiments and practices."
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Though the law was doomed, it was part of a normative exercise in delegitimizing the court. Lincoln allies mocked their opponents for "superstitious worship" of the court, made fun of the justices' appearance, and rejected the idea of "judicial review" of constitutionality.
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This crept into mainstream discourse. Maine senator (and Lincoln's future VP) Hannibal Hamlin wrote, "We make the laws, they interpret them; but it is not for them to tell us what is a political constitutional right of this body.
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"Of all the despotisms on earth, a judicial despotism is the worst. It is a life estate."
During the Lincoln-Douglas debates, Douglas attacked Lincoln for undermining the court's legitimacy. Far from rebutting this claim, Lincoln made it a campaign promise.
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During the Lincoln-Douglas debates, Douglas attacked Lincoln for undermining the court's legitimacy. Far from rebutting this claim, Lincoln made it a campaign promise.
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"We do not propose to be bound by [Dred Scott] as a political rule. We propose resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."
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Lincoln won the election, and in his inaugural address, he said, "[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...
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"The instant they are made the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal."
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Lincoln DID pack the court, adding one more justice, but he also just bypassed them, ignoring their precedents and passing new antislavery laws that contravened them. SCOTUS was sidelined for a decade, including during Reconstruction.
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Karp: "Drawing direct lessons from the past is a fool’s errand, but this history should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents."
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"The Right’s resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the court only to achieve what it cannot accomplish through electoral politics."
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