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SUPREME COURT REFORM 101: As a law prof who came up w/ Scotus reforms discussed by multiple pres candidates, I often get asked what proposal is best. So for the next week, I’ll discuss one proposal a day. Today’s topic: expanding the size of the Court. A thread! 1/
Many D’s are making the case for expanding the size of the Supreme Court in response to McConnell’s 1st blocking Garland and now pushing forward on ACB. A good overview from @danpfeiffer 2/ https://messagebox.substack.com/p/making-the-case-for-court-expansion
Is it Constitutional? Almost certainly. The Constitution doesn’t fix the size of the Court. It’s changed multiple times & has been at 9 members since 1870. The most recent attempt to change it was in the 1930s when FDR tried to expand the size of the Court, but failed. 3/
Some argue that the longevity of 9 and FDR’s failed attempt create a constitutional norm against changing the size. But others note that changing it is a fair response to norm-breaking on the Republican side on core democracy issues. 4/ https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court
Some worry court-expansion will lead to tit-for-tat retaliation. Perhaps, but game out the scenarios if an appointment happens. Option 1: Do nothing, and there’s a 100% chance of a 6-3 conservative court. Not great for D’s or democracy. @aaronbelkin 5/ https://www.theatlantic.com/politics/archive/2020/09/democrats-case-court-packing/616446/
R’s have suppressed voting to stay in power & broken other democratic norms. Conservative judges have ratified some of this. Doing nothing means the anti-democratic spiral continues (bad for America) and makes it harder for D’s to win (bad for D’s). 6/ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3671830
Option 2: Expand the size, and there’s a % chance D’s get the Court for a few years then lose it if R’s retaliate, and then get it back etc. – BUT ALSO a % chance R’s won’t do that, AND a D president, Congress, and Court could save American democracy in the meantime. 7/
How? Ensure right to vote, end gerrymandering, etc. – w/o courts striking them down. This could halt democratic backsliding & fulfill democratic ideals. Other D priorities will also be less in danger & possible to make progress: repro rights, climate change, workers’ rights. 8/
Some argue court expansion will hurt D’s policy agenda & political capital, but fail to note that expansion could build political power, force R’s to change & doing nothing virtually guarantees that many D priorities, incl voting, will be struck down. 9/ https://www.politico.com/news/magazine/2020/09/23/court-packing-is-a-fantasy-420828
Proponents of court expansion stress this point. @aaronbelkin to @elainejgodfrey “In a free and fair system, the Republican Party cannot win as often as it does. If you undo the cheating, either they lose or they de-radicalize.” 10/ https://www.theatlantic.com/politics/archive/2020/09/democrats-case-court-packing/616446/
Others make the point that court expansion in conjunction with other reforms would be transformative and couple well together. This would likely mean a political realignment if D’s did it. @davidplouffe 11/ ttps://twitter.com/AaronBelkin/status/1309368853076606977?s=20
Sidebar: Major political realignments in US history generally feature Court-battles. Jeffersonians v. Federalists. Civil War Era court-changes to prevent Southern power. FDR’s attempt. This could be that moment for R’s or D’s. 12/ https://www.basicbooks.com/titles/ganesh-sitaraman/the-great-democracy/9781541618114/
This is also a BIG exception for tit-for-tat retaliation theory. It’s possible, yes, but it’s also possible one side will win, and there will be a new equilibrium. That outcome, realignment, is a very common one in U.S. history. 13/
Still, you ask: are there other ways to reform the Court, outside of adding justices, even if it means reducing the upsides for D’s? Stay tuned for further threads. 14/end
