The case against court packing
Now that Democrats control both chambers of Congress and the White House, the party has a narrow path for packing the Supreme Court with more justices. Some Democrats believe this is a necessary remedy for the underhanded tactics of Senate Republicans when it comes to confirming justices, notably the blockade of Merrick Garland in 2016 and their rush to confirm Amy Coney Barrett one month before the 2020 election, which cemented the conservative majority in the Supreme Court.
I vocally supported confirming Garland to the Supreme Court in 2016. I also understand where the frustration on the left comes from with regard to Senate Republicans gaming the formal confirmation process. However, packing the Supreme Court would set a dangerous precedent and would hurt democracy by making the institution another instrument of partisan politics. Further, it would be a perilous move for Democrats.
Packing the Supreme Court is possible. With a party line vote in Congress and a signature by President Biden, Democrats can expand the Supreme Court absent a filibuster in the Senate. Even so, with their narrow Senate majority, Democrats could use the nuclear option to change procedural rules and end the filibuster, giving them a path to add justices.
However, the effort fails if just one Senate Democrat opposes either an end to the filibuster or the addition of justices. This is a probable, given that centrist Senate Democrats, such as Joe Manchin and Michael Bennet, have already indicated that they would vote against doing away with the filibuster, or would likely not support packing the Supreme Court.
But even if Senate Democrats can get their entire coalition on board with deploying the nuclear option, that would continue a perilous precedent in the chamber, where the party in control can use the measure in a divided body to curb opposition, effectively shutting the door to critical bipartisan compromise. Indeed, it is important that we maintain the filibuster so that we maintain the bipartisan compromise built into the system.
The nuclear option has been used by both parties over recent years as a partisan tactic in a divided Senate. In 2013, Senate Democrats used it to end the filibuster for executive branch appointees, which allowed them to approve nominees of Barack Obama with a simple majority. Then in 2017, Senate Republicans used it to eliminate the filibuster for Supreme Court nominees, which enabled them to confirm Justice Neil Gorsuch.
Even if Democrats can get rid of the filibuster, packing the Supreme Court on a party line vote would tarnish judicial credibility and would reduce the institution to a partisan tool. Moreover, it would trigger an endless cycle of revenge politics, as each successive party in control would be motivated to add justices to restructure ideological balance on the bench.
The backlash of packing the Supreme Court would be considerable for Democrats, as this move is unpopular with voters. After the confirmation of Barrett, a national survey had found that, by 47 percent to 34 percent, voters think Democrats should refrain from altering the Supreme Court. But most Democrats do want party leaders to add more justices.
So packing the Supreme Court would damage the chances for Biden of achieving his elusive goal of unifying both parties. This would send the message that he is instead interested in fueling the current climate of partisan politics, rather than trying to fix it. It would not only harm his legacy, but would also likely prevent him from being able to pass any meaningful or comprehensive bipartisan legislation in office.
Biden has opposed packing the Supreme Court in the past, saying during the campaign that Democrats would “live to rue that day” if they took this action. Yet after the death of Justice Ruth Bader Ginsburg, Biden was mum on the issue then eventually promised to appoint a bipartisan commission to study the judicial system, which he called “out of whack.”
But most Americans do not need or want another partisan showdown on the Supreme Court, which is exactly what packing it would devolve into. Americans desire bipartisan legislative solutions to end the coronavirus pandemic, restore the economy, get people back to work, reform health care, fix immigration rules, and ultimately improve their lives.
Douglas Schoen is a political consultant who has served as adviser to Bill Clinton and to the campaign of Michael Bloomberg. His new book is “The End of Democracy? Russia and China on the Rise and America in Retreat.”