Democratic candidate Joe Biden has so far refused to reveal who he might appoint to the Supreme Court, but he revealed more than he may have intended when he said in an Oct. 9 interview that voters do not "deserve" to know his position on court-packing. He tried to walk that back a bit in an ABC News town-hall interview Thursday, conceding that voters have a right to know his position and will before Election Day, “Depending on how they handle this” — a reference, apparently, to Judge Amy Coney Barrett’s Supreme Court nomination.
This much is clear: If Democrats win the presidency and the Senate, they will face immense pressure from their base to eliminate the filibuster and add seats to the Supreme Court.
Mr. Biden’s oft-repeated explanation for his lack of candor has been equally revealing. He has said repeatedly that “the moment I answer that question, the headline in every one of your papers will be about that.” Correct — because the consequences of expanding the Supreme Court to cement a liberal majority are so sweeping. That assault on judicial independence would disfigure American politics, erode the Constitution’s separation of powers, and create an unelected super-legislature more likely to be accountable to special interests than to the rule of law.
Americans need only look to history for how “packing the court” would damage our already polarized politics and public trust in the judiciary. Since 1869, the Supreme Court has been nine members large—a collegial number that has been settled for a century-and-a-half. But after the Supreme Court held several of President Franklin D. Roosevelt’s New Deal programs to be unconstitutional, FDR submitted a bill that would have allowed him an immediate option to add six justices and increase the Court to 15 justices.
Even for a Congress controlled by his party, Roosevelt’s power-play was too much. Indeed, the Senate Judiciary Committee, then run by Democrats, concluded that court packing would “make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is.” FDR’s bill failed.
Nevertheless, the court-packing plan undermined public confidence in the court. In the famous “switch in time that saved nine,” the Supreme Court reversed course and began upholding New Deal legislation and radically altering constitutional limits on federal power. Whether or not accurate, Roosevelt attributed the court’s switch to his political assault on the justices, calling it “a turning point in our modern history.”
Adding seats to change case outcomes would drag a politicized process to new lows. None other than the late Justice Ruth Bader Ginsburg said the same: “If anything would make the court look partisan, it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ”
Even an unsuccessful attempt to pack the court in 2021 would tell half of the country, “We win, you lose.” After the incredible division and rancor of a bruising presidential campaign mixed with a pandemic, a culture war and civil unrest, I am unsure the nation could sustain the blowback.
The only way to undo a Biden administration’s court-pack would be to subject the new institution to a “re-pack” by adding even more seats, or a “de-pack” by removing seats based solely on judicial decision-making. If Democrats expand the court, the next time Republicans have power, they will feel justified doing the same. As Sen. John Thune (R-S.D.) said when then-Senate Majority Leader Harry Reid (D-Nev.) eliminated the judicial filibuster, “what goes around comes around.”
Ever-escalating court expansion would strain the soundness of the Constitution’s structural genius. Drawing on insights from the Scottish enlightenment, the Constitution’s framers prudently modified their English forebears’ form of government. The English system united executive and legislative power in a parliament led by a prime minister, a body to which English courts are subordinate. By contrast, the American experiment broadly divided the power to make the law, enforce the law and interpret the law into three distinct branches. By thus making ambition counteract ambition, in James Madison’s words, our separation of powers is an even more important bulwark against tyranny than our hallowed Bill of Rights. Indeed, the separation of powers is a primary reason that the United States has survived as the world’s longest enduring republic.
But if the two political branches decided to reorganize the third branch whenever they wanted to change its ideological valence, separation-of-powers principles would fall by the wayside: The court would not be an independent third branch but a subordinate adjunct to the presidency, Congress and the unelected bureaucracy, to which the courts have deferred too much already.
Such an enlarged Supreme Court would become susceptible to the influence of special interests. Regulated industries regularly seek to bend the administrative agencies that ostensibly regulate them to work against competitors and bias regulators in their favor. Courts have been less vulnerable to such capture due to wise constitutional safeguards to ensure political independence, such as life tenure and protected salaries. Beyond such formal safeguards, the manageable number of justices — nine — has helped cultivate collegiality and professional cohesion among the nation’s top jurists, partially insulating the institution from outside influence.
But expanding the court in our polarized times would erode such bulwarks against judicial bias. Court-packing would forever hang like a sword of Damocles over the judiciary, its political independence compromised. Because any judgment sufficiently adverse to the president and Congress or their favored constituencies could trigger the addition or removal of seats, the justices would inevitably strive to maintain their power before their political masters. Individual justices might cater to industry-backed coalitions, who could pressure the political branches to protect the court—or to grow it and add allies to justices in the minority. Briefs filed by congressmen and senators would take on undue power.
It is also likely that new justices would be political operators, rather than legal scholars: Why expand the court but to fill it with political allies? Their ears would be tuned not to the merits of cases but to the power of the parties. Such jockeying would poison the court’s culture and encourage gross judicial grandstanding. The court would thus more often act as a super-legislature, writing rather than interpreting the law.
Considering such consequences of court-packing, Mr. Biden owes Americans an honest explanation of his position — and more: He should promise to protect the number nine.
C. Boyden Gray was counsel to Vice President George H.W. Bush, 1981-1989, and President Bush’s White House counsel, 1989-1993. He was U.S. ambassador to the European Union and a special envoy for European and Eurasia affairs during the George W. Bush administration. He is now in private law practice in Washington.