Supreme Court Expansion Isn’t Even a Tough Call

To court pack, or not to court pack? That is the question Democrats are doing everything they can to avoid answering — even though Republicans have been successfully packing the courts for years.

Any legislation to expand the Supreme Court will inevitably be met with GOP claims that Democrats are violating the Constitution. But expanding the court is totally consistent with Congress’s enumerated powers.

As the GOP races to try to install Amy Coney Barrett to the Supreme Court before the election, Joe Biden and most competitive Democratic Senate candidates — other than one — are running away from queries about whether they would support expanding the court.

Republicans have not suffered from such equivocation — instead, they have for years tried to pack the courts, both through contraction and expansion. In Washington, they have pushed to shrink the courts, and they have blocked Democratic presidents from filling judicial appointments — moves designed to increase the power of GOP-appointed judges already on the bench. In states, Republicans have pushed to expand the courts to increase their number of appointees.

At the Supreme Court level, Republicans stole a majority when they denied a hearing for President Barack Obama’s Supreme Court choice for 293 days before Trump took office, and placed Neil Gorsuch on the courts. They minted a more conservative majority with Brett Kavanaugh. Amy Coney Barrett and a six-to-three balance on the court, arriving via a grim bit of luck, would just be the icing on a decades-long, ultraconservative majority that threatens Americans’ reproductive rights, voting rights, labor rights, health care rights, and civil rights.

If Democrats have any interest in protecting Americans’ fundamental rights, they only have a few options. They can try using parliamentary tactics to successfully block Barrett’s nomination, which Senate Democrats have been reluctant to do, and they can add more court seats later. This is reality, and it’s precisely why Democrats are getting so many media questions about adding court seats.

The easiest way to talk about whether to expand the court is to cast it as an issue of values and policies that people actually care about. If — as they insist — Democrats are firmly committed to protecting reproductive, voting, labor, health care, and civil rights, it shouldn’t be difficult for any Senate candidate to say they will consider all options available to protect them, including expanding the court.

In that sense, Democratic support for expanding the court is synonymous with supporting popular, essential liberties like a woman’s right to choose, workers’ right to form unions, and Americans’ right to not be thrown off their health insurance because they have a preexisting health condition.

By contrast, Republicans only want to talk abstractly about process and court size and not about policy — because their judicial nominees’ opposition to abortion rights, health care protections, and union rights are wildly unpopular.

Adding court seats to the Supreme Court is just one more area where Democratic politicians are lagging to the right of their voters. A Marquette University poll taken shortly before Supreme Court Justice Ruth Bader Ginsburg’s death found that 61 percent of Democratic voters support increasing the size of the court. Support for Democrats’ 2010 health care law, the Affordable Care Act — which the Supreme Court could strike down next year — is at a record high.

Creating More Questions by Refusing To Answer Questions

As Democrats try to avoid answering questions about the court, they’ve ended up stumbling into more media questions about packing the court — the thing they’re actively trying not to talk about — while sounding evasive.

“They’ll know my opinion on court packing when the election is over,” former vice president Biden said last week when reporters asked him about adding seats to the Supreme Court. He added: “Now, look, I know it’s a great question, and y’all — and I don’t blame you for asking it. But you know the moment I answer that question, the headline in every one of your papers will be about that.”

When a local reporter in Las Vegas told Biden that adding court seats is “the number one thing that I’ve been asked about from viewers,” Biden responded: “Well, you’ve been asked by the viewers who are probably Republicans who don’t want me continuing to talk about what they’re doing to the court right now.”

Democratic Senate challengers in key swing states — Jaime Harrison in South Carolina, Cal Cunningham in North Carolina, Mark Kelly in Arizona, Jon Ossoff in Georgia, Theresa Greenfield in Iowa, Sara Gideon in Maine, and John Hickenlooper in Colorado — have said outright that they oppose adding judges to the court, or attempted to dodge the topic.

One Democratic Senate Candidate Gets It Right

At least one Democratic Senate candidate seems to understand the situation: over the weekend, Montana’s Democratic governor Steve Bullock said that if he is elected to the Senate, he would consider expanding the Supreme Court. Here’s a snippet of the Associated Press report:

Bullock rejected the confirmation process of Judge Amy Coney Barrett to the U.S. Supreme Court, saying it could put parts of the Affordable Care Act in jeopardy. Daines has expressed support for a court case seeking repeal the health law, which is set to be heard by the court days after the Nov. 3 election.

Bullock said that if Coney Barrett was confirmed, he would be open to measures including adding justices to the bench, a practice critics have dubbed packing the courts.

“We need to figure out the ways to actually get the politics out of the court,” Bullock said. “That’s anything from a judicial standards commission, or we’ll look at any other thing that might be suggested, including adding justices.”

Republicans were quick to attack Bullock for this position, but there is little evidence that the exact number of justices on the court is some top-of-mind concern among voters. There’s absolutely zero evidence that voters want the Supreme Court stuck at nine justices, even if that means those justices doing wildly unpopular things, like throwing out protections for preexisting medical conditions.

“The Number of Supreme Court Justices Is Not Fixed”

Of course, any legislation to expand the court will inevitably be met with GOP claims that Democrats are violating the Constitution. However, expanding the court is totally consistent with Congress’s enumerated powers.

“Under the Constitution, the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act that is then signed by the President,” wrote Scott Bomboy, the executive director of the National Constitution Center. “Article III, Section 1, starts with a broad direction to Congress to establish the court system: ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’”

Over two centuries, the court’s size has been adjusted. If the founders wanted the court permanently set at nine justices, they would have put that into the Constitution. They didn’t. They gave Congress the flexibility to adjust the court’s size. That power allows the legislative branch to make sure that the court doesn’t become a star chamber totally disconnected from the public will.

In light of that, if a Democrat like Bullock can make a sober-minded case for court expansion in a deep red state like Montana, then any Democratic candidate should be able to make a similar case.

Refusing to make that case — or running away from questions about court expansion — is not just cowardly, it is politically stupid. It forsakes an opportunity to turn a conceptual battle over the Supreme Court into a much more tangible, down-to-earth battle over policies that affect people in their daily lives.

Republicans don’t want to talk about those policies, but Democrats should.