SCOTUS Agonistes

This article appears on American Consequences on May 21 2019.
Share

No matter how much we might rage against the political calendar (the bastards are encouraged even if we don’t vote), the 2020 presidential race is upon us. Having finally learned the lesson of ceding judicial nominations to the Republican Party, all 837 Democrats running for the White House are determined to make the Supreme Court a campaign issue.

But this isn’t just the usual demagoguery about how the Federalist Society picks judges to create a world where, to quote Ted Kennedy’s 1987 calumnies against nominee Robert Bork and a conservative Court, “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

No, the play now is to pack the Court, among other “reforms” to our constitutional structure. (“Reform” meaning, of course, “radical change that will make James Madison spin in his grave.”)

Democrats have made Merrick Garland the holy martyr of this crusade. This in retaliation for the Republicans’ violation of the Constitution’s “Supreme Court nominees must get hearings and votes no matter what” clause. Senates, the Democrats claim, are expected to confirm forthwith nominees made by a president of the opposing party to high-court vacancies arising in presidential election years. Indeed, that has happened… as recently as 1888.

And in 1992 when a young Judiciary Committee Chairman named Joe Biden said that presidents shouldn’t get to appoint justices in the last year of their terms, that was totally different… Just like it was different when Senator Chuck Schumer said the same in 2007, because the presidents then were Republicans.

Not that Senate Majority Leader Mitch McConnell couldn’t cite longstanding precedent for his own decision to ignore Garland — the first nominee on whom the Senate took no action since the nomination of Stanley Matthews in 1881. (A few nominees withdrew before the Senate could non-act, like Douglas Ginsburg in 1987. Ginsburg smoked pot with his law students, and thus became the Drug War’s last public casualty.)

To be fair to McConnell, he never claimed to be making anything but a political argument: That the voters, having in their infinite wisdom re-elected President Barack Obama in 2012 but then flipped the Senate red in 2014, deserved a chance to make up their minds. And so, pursuant to the Senate’s power of “advice and consent,” Republicans advised the president that they would not, could not consent to anyone he chose.

It was a risky maneuver, particularly given that Hillary Clinton was a heavy favorite to beat Donald Trump, and there was no guarantee that she would re-nominate the milquetoast Garland — as James Garfield had done for Matthews back in those crazy 1880s. We could’ve ended up with Justice Woke Karl Marx, which is why at least some vulnerable Republicans were expected to cave.

But to everyone’s surprise, Republican senators’ spines held up and Trump won. Keeping Justice Scalia’s seat open held the GOP coalition together, providing the winning margin in key states. Clinton hardly mentioned the Court on the stump — Russian hackers apparently got to her teleprompters, in addition to rerouting her flights to avoid Wisconsin — and Judiciary Committee Chairman Chuck Grassley won by nearly 25% in supposedly swing-state Iowa.

Trump then scoured his wonderful list of terrific judges (no really, the list is solid) and picked Neil Gorsuch. Gorsuch was confirmed despite having published a paper for the Cato Institute when he was 25, but only after a party-line vote on the so-called “nuclear option” to blow up Supreme Court filibusters — the need to get 60 votes on the motion to proceed before proceeding on the motion to vote.

Combined with then-Majority Leader Harry Reid’s “tactical nuke” of lower-court filibusters in 2013, this returned Senate practice to what it was a decade earlier, when only a majority could stall a nomination.

(I do feel sorry for Merrick Garland, but it’s not like he’s been sent off an ice floe. He remains in his “backup job” as chief judge of the second-most powerful court, the U.S. Court of Appeals for the D.C. Circuit, where he can take revenge by ruling against all sorts of Trump administration rules and regulations.)

But Goodbye Kid Garland and Duke Nukem Gorsuch are not all the Dems are upset about. There was also the “law-pocalypse” when the first “gay” justice (in the matter of rights, not private life), Anthony Kennedy, retired, and Trump nominated the all-too-heterosexual Brett Kavanaugh in his place. Kavanaugh faced a smear campaign unlike any since the irascible Bork with his irascible beard, and was confirmed 50-48, the narrowest margin since – precedent rears its head again – the re-nominated Stanley Matthews’ 24-23 vote in 1881.

If Gorsuch sits in a “stolen” seat, Kavanaugh’s sin — even before the 11th-hour sexual-assault allegations — is that he’s in the “catbird seat” against swing-vote liberalism and gives Trump some sort of immunity from prosecution. (As if he’s Michael Cohen with a Yale degree.)

The Democrats believe all this norm-breaking can be remedied only by breaking more norms — like expanding the Supreme Court, eliminating the Electoral College, lowering the voting age to 16, restricting political speech, and giving the Federal Election Commission a partisan slant. Only then will America be safe for Alexandria Ocasio-Cortez.

Let’s focus on the Court-packing, as all the Democratic presidential contenders have. “We are on the verge of a crisis of confidence in the Supreme Court,” senator-splained Kamala Harris (D-California), “and everything is on the table.” (To be fair, Harris’ mention of “on the table” also may have been a swipe at Robert “Beto” O’Rourke, who has taken to standing on tables, bars, cars, and pretty much every other raised surface in his attempts at campaign visibility.) Meanwhile Senator Elizabeth Warren (D-Massachusetts), thinks packing the Court will somehow depoliticize it.

Actually, there is one candidate who has shied away from a call to add justices: Senator Cory Booker (D-New Jersey), who has merely endorsed Supreme Court term limits. What a world where Spartacus is your voice of caution!

Caroline Fredrickson, president of the American Constitution Society (the left-wing counterpart to the Federalist Society and a role I thought law schools and the American Bar Association had already filled) reminds us that it’s “not written in stone that the court has nine seats.” Indeed, the Constitution doesn’t specify a number, but each time Congress has changed it there was a partisan reason, and it didn’t always turn out so well.

The original Supreme Court had six seats, but in 1801 Congress passed a law that would’ve reduced the number of justices to a tie-proof five while increasing the number of circuit and district court judges. The idea was to strengthen the power of the Federalist-dominated judicial branch to thwart the incoming Democratic-Republican president, Thomas Jefferson.

Outgoing president John Adams rushed to fill new judgeships created by that “midnight judges act.” Some of those judicial commissions didn’t get delivered until after the inauguration of Jefferson, who declined to honor them. That led to the foundational case of American law, Marbury v. Madison, which established “judicial review,” the concept that the Supreme Court can decide whether government actions violate the U.S. Constitution.

Congress restored the Court to six seats in 1802 and added a seventh seat a few years later, in part because Jefferson wanted to check the Federalist Chief Justice John Marshall. This early packing failed because Marshall, the “Great Chief,” kept convincing new justices to see things his way.

Eighth and ninth seats were added in 1837 to allow Andrew Jackson to push through his “Make America Great Again” policies. One of Jackson’s previous appointees, Roger Taney, would author the Dred Scott fugitive-slave ruling, with the support of justices appointed to the two new seats.

Congress created a 10th seat in 1863 to assist Abraham Lincoln’s somewhat novel wartime constitutional interpretations. But that seat was never filled, and we’ve never actually had more than nine justices.

During the partisan tensions of Reconstruction, Congress declared that the next three justices to leave wouldn’t be replaced, thereby blocking any “Soft on the South” ruling President Andrew Johnson might desire and leaving the Court at seven seats.

After Johnson’s rocky tenure — he was impeached and came within one vote of being removed from office — Congress fixed the number of justices at nine. That number has now endured for 150 years.

Since then, the paradigmatic attempt at court-packing was FDR’s judicial “reform” bill of 1937. The president had just been reelected handily — without any social-media help from Stalinist Russia — but was frustrated by the Supreme Court’s refusal to “like” the New Deal.

Roosevelt proposed adding a new justice for every old fogey, a formula that would have allowed him to add six black-robed henchmen.

This plan met heavy opposition from Congress. It didn’t get a vote, despite Democratic super-majorities that make California’s current legislature look competitive. It received a public rebuke by FDR’s own vice president, John Nance Garner. Chief Justice Charles Evans Hughes even testified against it before Congress. Anger over the court-packing issue also led to huge Democratic losses in the 1938 midterms. Republicans gained 81 seats in the House and seven in the Senate, reducing the Dems to mere comfortable majorities.

And yet, FDR still managed to pack the Court. By the end of 1941, only two justices remained from the Court he inherited eight years earlier. And even this was anticlimactic. In 1937 the Court turned more compliant toward New Deal policies after “the switch in time that saved nine.” The justices started narrowly upholding expansive new programs of the sort they had been striking down. (The name of the justice who switched his vote? Why, Roberts, of course.)

Nobody has really proposed packing the Court since, preferring to either win elections or wait for Republican-appointed justices to move left. Modern Democrats, however, seem to have lost confidence in either of those strategies, instead turning to plans to “fix” the Court by adding a few ideologically friendly justices.

But if Democrats think that doing so would reduce political tensions, they’ve been smoking too much of that plant that you should be able to grow in your yard for your own consumption but can’t as a matter of federal law because of an otherwise privacy-rights-inclined Court’s 2005 Gonzales v. Raich decision. (In Raich, a six-justice majority — including Antonin Scalia, with his Drug War exception to the Commerce Clause — allowed the feds to continue banning non-interstate non-commercial marijuana.)

But I digress. The larger issue is that, even if Democrats win back both the White House and Senate next year — a big if, particularly given an unfavorable Senate map — they would have to do away with the legislative filibuster to pack the Supreme Court.

And at that point, it’s “Nancy bar the door,” with everything from “Medicare for All” to the Green New Deal passable by simple majorities. It would also mean, however, that when Republicans regain control of Congress, they would do the same for their priorities, like repealing Medicare-for-All and the Green New Deal. Plus adding even more justices. By the time Barron Trump runs against President Beyoncé, we’ll have a 53-member Court.

Of course, there might be some advantages to having that many justices. The Supreme Court would be able to hear more cases, process petitions more efficiently, and pay better attention to all that judicial-administration stuff. There would also be less of a battle for each of the 53 seats than each of the nine — and presumably fewer divisive 27-26 rulings than 5-4 ones now. Hey, maybe I could even get appointed…

Come to think of it, this Court-packing doesn’t sound half-bad.

Ilya Shapiro

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. He’s also been P.J. O’Rourke’s pro bono lawyer in four Supreme Court cases – and worth every penny