What can you do when your side loses control of the Supreme Court? When the other party’s president gets to appoint some people who might stay on the Court for decades? And you’ll just keep losing 5 to 4 or even 6 to 3, or worse? What do you do when you achieved much of your agenda because the Court demanded it, not because legislatures voted for it?

In other words, what do you do when you’re the Democrats and Trump has already appointed two young conservatives to go with the three conservatives who were already there? You pack the Court. You keep adding justices till you get a solid majority.

Court-Packing Candidates

Several 2020 Democratic presidential candidates are talking about increasing the number of Supreme Court justices from nine to 11 or 13. Kamala Harris, Elizabeth Warren, Kirsten Gillibrand, Beto O’Rourke, and Pete Buttigieg “have all expressed at least an openness to the idea,” says The Washington Post. “Liberal activists” push the others to think about it.

For example, Gillibrand says Justice Neil Gorsuch shouldn’t be on the court. She believes President Obama’s candidate, Merrick Garland, was unfairly denied a confirmation hearing. Sen. Majority Leader Mitch McConnell withheld a hearing because Obama nominated him in the last year of his presidency. This has been a common practice in the past.

One Democratic strategist argued for doing it in The Washington Post last year. His argument is typical of those liberals make for packing the court. David Faris, author of It’s Time to Fight Dirty, a book about building a Democratic majority, called it “a crucial avenue for safeguarding American democracy.”

It would protect the country from something “threatening to democracy: indefinite minority rule.” Republicans don’t represent the majority of voters, he claims. Therefore, the Court will always be too conservative. The only way to fix it? A Democratic president appoints more justices.

The high court has had nine justices since 1869. Franklin D. Roosevelt threatened to pack the court in 1937. He wanted to do it because the conservative Court kept blocking his plans. But Democrats in Congress and his own vice president opposed it.

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, says Democrats want to expand their political agenda to the Supreme Court. They realize how powerful the highest court has become. President Trump observed, “The only reason they’re doing that is they’re trying to catch up. So if they can’t catch up through the ballot box by winning an election they want to try doing it in a different way.”

Politicizing the Court

Can someone pack the court? Yes. Congress could do it, since the Constitution doesn’t state the number of justices. The Republicans won’t change it. But if the Democrats take the presidency and the senate, they might.

Is it a good idea? No. It might be constitutional in the sense that the Constitution would allow it. But it wouldn’t create the Court the Constitution created.

David Davenport, writing for the Washington Examiner, notes that the founding fathers didn’t want the Court to have the power it has today. “Alexander Hamilton argued in The Federalist (No. 78) that the judiciary, having neither the power of the sword nor the purse, would be ‘beyond comparison the weakest of the three departments.’”

As a friend puts it, the Court referees the game, it doesn’t play it. The Patriots and the Rams play the game. The team that scores the most points wins. The referees just make sure sure both teams play fair. They don’t penalize the Patriots for having Tom Brady the G.O.A.T. or help the Rams because they have the young Jared Goff.

Even Lawrence Tribe Agrees

Left-wing law professor Lawrence Tribe agrees. He opposes the expansion. He says it will “negate the votes of justices whose views a party detests and whose legitimacy the party doubts.” It would politicize the court.

Court packing could lead to a “tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.” In other words, if Democrats increase the number of justices, the next time the GOP is in power they will do the same thing. It could get ridiculous.

In contrast, Democrats argue that it would depoliticize the court. How? By letting both parties choose justices. Under one of the most popular plans, the GOP would choose five and the Democrats would choose five. Those 10 would then choose five more.

Packing the court hasn’t been all bad. Adding another justice to the court in 1863 helped protect the Civil War effort.

Pack the Courts

A liberal group called Pack the Courts wants to get the Democratic presidential candidates to support the expansion. Executive Director Aaron Belkin, a political science professor at San Francisco State University, says expanding the court would “restore democracy to our democracy.” It would change the outcome of issues like voting rights and gerrymandering. Pack the Courts sees the current court makeup as a “political weapon for the billionaire class.”

But even if the Democrats come into power, they may not have the support of enough Democrats. Key senators Cory Booker, Amy Klobuchar, Michael Bennett, and Dianne Feinstein all oppose court-packing. What they may be doing is just threatening the court that it better become more moderate. FDR never had to pack the court because the threat of enlarging it was enough to force the court to accept his welfare state.

There are other solutions being proposed. Tribe proposes eliminating lifetime tenure on the Supreme Court. Justices will have 18-year terms. Fordham law professor Jed Shugerman suggests requiring a 6-3 majority to strike down a statute. Legal scholars Daniel Epps and Ganesh Sitaraman would rotate the justices every two weeks among the appellate court judges.

Republicans aren’t taking a chance. GOP members of Congress are proposing bills to block court-packing.

And the Democrats? They know how bad “court-packing” sounds. They know the term tells people they’re trying to get by changing the court what they can’t get by winning elections. So what are they calling it? “Reform.” Everything for Democrats is a “reform.” Even better, they are calling it “balancing the court.”

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