Does Supreme Court Expansion Controversy Obscure a More Fundamental Problem?

Image by Fred Schilling Collection of the Supreme Court of the United States min
Image by Fred Schilling Collection of the Supreme Court of the United States min

Experts Debate the Risks and Rewards of Potential Supreme Court Expansion

Hypocrisy and Representational Imbalance Bolster Calls for Expanding the Supreme Court

By Russell Wheeler Visiting Fellow at The Brookings Institution

The Modern Push for Court Expansion

Groups on the left began, well before the 2020 election, to press candidates to pledge action to enlarge the Supreme Court. They criticized President Trump’s early 2017 appointment of Justice Gorsuch after the Republican Senate refused to consider President Obama’s March 2016 nominee (then circuit judge, now attorney general) Merrick Garland for the same vacancy created by Justice Scalia’s death. The controversy-infused appointment of Justice Kavanaugh in 2018 bolstered these calls for expansion. They gained more strength due to Justice Barrett’s rapid October 2020 confirmation even as voters were beginning to cast the ballots that most everyone predicted would end the Trump presidency. Fears that the Court will further restrict abortion rights and expand gun owners’ rights next term have fueled the flames, especially given Barrett’s replacement of Justice Ginsburg. 

As the Barrett confirmation loomed, then-candidate Biden promised to appoint a commission to study Supreme Court “reform” (a word so ubiquitous as to be meaningless). President Biden’s approach to the judiciary has several aspects. He has been aggressive on the appointments front, pledging to appoint the first African American woman justice if a vacancy occurs. His 29 lower court nominees as of late July (with only a few white males among them), and eight confirmations are ahead of Trump’s 20 nominees and three confirmations as of the same time. But he has made clear his disinterest in seeking significant structural change to the Court. He said during the campaign that he was “not a fan” of structural change. “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.”

The Unlikelihood of Change

He named the promised commission in April 2021, charging it with assessing — but not offering recommendations about — some rather ambiguous matters such as “contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system.” At its first public meeting, the commission defined its mission to include judicial review and limits thereon, term limits, the size of the Court and the secondary implications of a court larger than nine, changes to the Court’s case-selection procedures, and transparency, to include ethical constraints.

Whatever the commission’s analysis and proponents’ rhetoric, any fundamental change is unlikely in the foreseeable future. Major federal court change proposals without time-tested bipartisan consensus will be in serious jeopardy. For one example, the 1891 creation of the courts of appeals — seen today as an overdue modification to the design of the 1789 Judiciary Act — was 25 years in the making as the system endured what scholars have called “the nadir of federal judicial administration.” The last half-century is littered with the at-best modest accomplishments of “reform” commissions, including one that then-Senator Biden helped create.

Despite Biden’s lukewarm approach to major Supreme Court changes and the slim chances for the adoption of any, Republicans are using the commission as a stick with which to pound Biden with the charge that he either wants to “pack the court” or, at the least, is under the control of those who do. Senate Minority Leader McConnell said the “commission to study packing the Supreme Court . . . fits squarely within liberals’ years-long campaign to politicize the Court, intimidate its members, and subvert its independence” and is “another sign of the Far Left’s influence over the Biden administration.” Florida’s attorney general wailed about “a gross partisan attack on our nation’s highest court.” 

Unapologetic Hypocrisy

Anger over the present composition of the Court is thoroughly understandable. The proper grievance, however, is not that Trump and his Republican Senate put conservatives on the Court or even that they filled the Ginsburg vacancy late in a presidential election year. Those protesting Barrett’s election-eve appointment probably do not regret President Eisenhower’s October 1956 recess appointment of future liberal lion William Brennan. 

The more grounded grievance is twofold. First is the hypocrisy. As I have documented elsewhere, then-Senate Majority Leader McConnell essentially made up a historical myth of a long-standing rule against filling any Court vacancies in an election year (to justify ignoring Garland and then appointing Gorsuch the following year). They elaborated the fabrication by adding “when different parties control the Senate and White House” (to justify confirming Barrett but not Garland). Expansion proponents have played with history as well. Some call for fixing the “6-3 Republican supermajority” by changing the Court’s size, which Congress “has done so many times throughout American history.” They do not note that almost all the changes were to accommodate the justices’ at least technical obligation throughout the 19th century to attend to their assigned circuits by serving on the since-abolished circuit courts. House Judiciary Committee chair Nadler’s historical arguments in support of creating a 13-seat Court (to match the current system’s 13 circuits) correctly claimed that late 19th century legislators “pegged the size of the Supreme Court to the number of judicial circuits” (then nine). But they did so, not, as Nadler assumes, for workload reasons but because each circuit, at least technically, needed justice to sit on its several trial courts.

Minority Rule and Lessons from History

A second legitimate grievance involves a Court controlled by Republican appointees even though Republicans have lost the popular vote in seven of the nine most recent presidential elections since 1988. One might ask, so what? — justices have life (good behavior) tenure to protect the Court from the vagaries of popular opinion. That is so, but judicial independence must coexist with democratic government. Chief Justice Rehnquist captured the tension in 1996 in cautioning against the impeachment of a district judge for injudicious criticism of the police: “judicial independence,” he said, “does not mean that the country will be forever in sway to groups of non-elected judges.” He recalled both Franklin Roosevelt’s failed 1937 proposal to add six justices to the Court and the five vacancies that occurred almost immediately after FDR’s Court-expansion defeat with which he achieved a New Deal-friendly nine-justice Court. “[T]here is,” Rehnquist said, “a wrong way and a right way to go about putting a popular imprint on the federal judiciary.” His “right way”: popularly elected presidents and senators reshaping the judiciary by the normal process of filling vacant judgeships.

The real beef, then, is with our increasingly bemoaned federalism-on-steroids, including as it affects the federal judiciary. Its heavy thumb on the scale produced the Electoral College victory that gave Trump the judicial appointment authority despite his massive 2016 popular vote loss. The razor-thin Senate majorities that confirmed his nominees represent far less than a majority of the population. In a different world, one might have expected minority-support office holders — Trump, McConnell, and company — to go easy on their authority — realizing they had no electoral mandate to transform the judiciary — but that did not happen.

Although Roosevelt’s Court expansion plan was very unpopular, most observers agree that at least some of the justices who were blocking his very popular New Deal legislation realized that their opposition was putting the Court’s legitimacy in jeopardy. Continued and more potent calls for institutional changes were likely. There is no doubt a lesson there for the contemporary Supreme Court.

Checks and Balances are Working as Designed

By Robert Wilkes – Senior Correspondent at Divided We Fall 

Dear Russell,

I enjoyed reading the historical perspective you provide in your op-ed and I am impressed by your command of the subject. It is clear you are unhappy about the election of presidents by a minority of the national vote and you are not enamored with the Senate system for confirming Supreme Court Justices. 

You lament that Trump and McConnell came to power under a flawed, undemocratic process and that they used that power to shift the court rightward. I take it you believe these events are prima facie evidence to justify the Biden-appointed commission. I have written my arguments in defense of our Constitutional system here and here. But I have other comments about your piece.

No Need to Change the System

First, the basis for the commission is utter nonsense. The value of the Supreme Court is that it uniquely transcends the heat and passion of politics. The workings of the court are solely up to the court and should never be directed or meddled in by politicians. Which cases they choose to take up or leave is theirs alone to decide for reasons they alone may employ. 

Introducing term limits would invite more froth and turmoil and dilute the accumulated wisdom of the sitting judges. Expanding the court is a horrible idea, and the mere discussion of the topic reveals what is really going on. The commission is political theater: a meaningless sideshow and a waste of money. More importantly, it will backfire on the Democrats. It will be an election issue.  

I note that you reject court expansion as a purely partisan exercise and futile — I agree! Almost two centuries of experience makes clear that a SCOTUS of nine justices is optimum. It is large enough to provide a broad range of legal perspectives and small enough for the court to work as an intimate collegial group. The justices, from all indications, work together well and respect each other. 

The Framers Knew What They Were Doing 

Second, you write rather colorfully that the system that recently resulted in a rightward shift in the court is “federalism on steroids,” a phrase I found incongruous. Perhaps you would define what you mean by federalism, and, to clarify your point, tell us what you would put in its place. 

The phrase makes no sense to me historically. The founding generation debated in state legislatures (and most brilliantly in the Federalist Papers) about ratification of the new constitution. The Anti-Federalists sought to reject the proposed constitution and merely amend the Articles of Confederation, preserving a weak central government. The Federalists saw that situation as untenable and wished to create a strong central government capable of raising revenue, dealing with foreign powers, and defending the nation. Federalism narrowly won and the Constitution was, most fortunately, ratified. Our Constitution is a marvel and a tribute to its architect, James Madison. I maintain that you and others use the term backwards. Federalism was a movement to unify the nation under a powerful central government. Your complaint is that our system gives too much power to small states. It seems to me you want more federalism, not less. 

Checks and Balances

Third, perhaps you would prefer pure democracy similar to ancient Athens ruled by a simple plurality. Madison knew the Athenian system produced terrible and capricious decisions. The Spartans, however, came up with a remedy. They introduced strong leadership and — a crucial modification — checks and balances. Checks and balances tempered and leavened the deliberative process and resulted in a more prudent government. That is the basic design we have today. It’s working quite well; as the supporters of the Biden Administration’s alarming and dangerous tax and spend proposals are finding out.   

I agree with your conclusion that changing our Constitution to remedy “federalism on steroids” (and diminish the power of small states) is a hopeless task. Constitutional changes require ratification of the states, including the small states. It won’t happen, and I take comfort in that. In the future when political fortunes make their inevitable revolution around the sun, you will be comforted as well.

In response to Mr. Robert Wilkes: The Need for Some “Popular Imprint”

By Russell Wheeler – Visiting Fellow at The Brookings Institution

Mr. Wilkes: Thank you for your comments on my brief essay. You say: “I take it you [i.e., Wheeler] believe [“the election of presidents by a minority of the national vote, and … the Senate system for confirming Supreme Court Justices”] are prima facie evidence to justify the Biden-appointed commission.”

I am concerned about presidents who, despite a large popular vote loss, act as if they (and a slim majority of senators who represent a minority of the population) have a mandate to reshape the judiciary. That situation jeopardizes something that Chief Justice Rehnquist and others have said the life-tenured judiciary needs: some form of “popular imprint.” 

I also said that “anger over the present composition of the Court is thoroughly understandable.” I did not say that it “justified” the president’s commission. Rather, the commission honored candidate Biden’s tactical albeit sensible promise to appoint a commission and thus defuse Republican charges that he favored “packing the Court,” which he clearly does not.

The Court’s Limited Discretion

You say “the basis for the commission is utter nonsense.” How is it “utter nonsense” for a commission to present arguments pro and con for various changes to the Court? That is what the executive order directs. From my experience testifying at the commission’s June 30 meeting, the commission is doing what the president asked. As my essay notes, opponents have created a straw man by mischaracterizing the commission’s charge.

You say “the workings of the [Supreme] Court are solely up to the Court and should never be directed or meddled in by politicians. Which cases they choose to take up or leave is theirs alone to decide for reasons they alone may employ.” If “the workings of the Court are solely up to the Court,” why has Congress, for example, established the Court’s officers, the dates of its terms, its salaries, and its recusal and disqualification requirements? See here, here, and here

To say that the Court should be the sole determiner of “which cases they choose to take up” seems to assume that a total discretionary docket is the Court’s natural state. The statement ignores Article III’s mandate that the Court exercise its jurisdiction “with such exceptions, and … Regulations as the Congress [“meddling politicians”?] shall make.” Many statutes, starting with — but hardly limited to — the 1891 and 1925 judiciary acts, gradually moved the Court’s largely mandatory docket to the largely discretionary jurisdiction it exercises today.

A Misrepresentation of History

You say that “almost two centuries of experience makes clear that a SCOTUS of nine justices is optimum.” You offer the fact that the Court has had nine seats for 152 years, along with some speculation about its internal dynamics, as persuasive evidence that nine is optimal. Nine is a happenstance, a function of the number of circuits in 1869. Under the design of the 1789 Judiciary Act, the justices were nominally required to travel about their assigned circuit sitting on the trial (circuit) courts that sat in each circuit’s districts. Why is nine the Goldilocks ideal? As explained here most state supreme courts have less than nine.

Federalism on Steroids

You say “federalism was a movement to unify the nation under a powerful central government” and that my phrase “‘federalism on steroids’ … makes no sense … historically,” ignores the framers’ goal of a strong central government, and overlooks the ratification debates “in state legislatures” and in The Federalist.

Let us not get into semantic quibbles about what the framers meant by “federalism”; Martin Diamond explained that over 50 years ago (see Goldwin, ed., A Nation of States, 2nd ed, 1974). Suffice it to say that “federal” or variants do not appear in the Constitution, but its principal defenders argued that the government it created was “neither a national nor a federal Constitution, but a composition of both” (Federalist 39)

Contrary to your response, the Constitution directed ratification not by the state legislatures, but in special ratification conventions — consistent with the framers’ creation of a government that derives its authority from the people of the states (not from the states themselves). Chief Justice Marshall noted the distinction in McCulloch v. Maryland (1819 at U.S. 403). 

Time has disfigured the federalism concessions that the nationalists in Philadelphia granted (of necessity) to small states. At the 1790 census, the largest state (Virginia) had 13 times as many people as the smallest (Delaware). Today the ratio is 68 (California) to one (Wyoming), yet each has two senators and a two-member enhancement in its Electoral College delegation. The conservative dominance (not total control) in small states and those states’ overrepresentation in the Senate and the Electoral College helps explain why we no longer have the powerful central government that Hamilton and Madison envisioned. Today’s government cannot raise the debt ceiling without a game of chicken; never enacts appropriations bills on time; cannot meet basic national needs, such as bolstering infrastructure; and lets presidential and senatorial elections empower presidents (and those who manage them) to reshape the federal judiciary contrary to the preferences of majorities of the population to the degree they are reflected in vote totals. Federalism on steroids and extreme polarization are immobilizing the country.

This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.

Russell Wheeler headshot
Russell Wheeler
Visiting Fellow, Governance Studies, The Brookings Institution | Website

Russell Wheeler has been a visiting fellow in the Brookings Institution’s Governance Studies Program since 2005. Previously he was deputy director of the Federal Judicial Center. He received his Ph.D. from the University of Chicago in political science in 1970. Wheeler is an adjunct professor at the Washington College of Law, American University, a Public Member of the Administrative Conference of the United States, and a Fellow of the University of Denver’s Institute for the Advancement of the American Legal System. He has published popular and academic articles on judicial selection, education, ethics, and judicial governance.

Robert bio shot.1 e1646896546338
Robert Wilkes
Senior Correspondent at Divided We Fall

Robert Wilkes, Senior Correspondent at Divided We Fall, is the former president/creative director of Wilkes Creative, a national branding and marketing company. Robert flew 100 combat missions in Vietnam as a Navy attack pilot. He spent ten years in engineering and marketing at Boeing, where his writing skills were called upon for technical papers, marketing assignments, and speeches for Boeing executives. As an activist in pro-Israel politics, he lobbied with AIPAC for 15 years where he met many congressmen and senators from both parties. Robert loves history, enjoys the craft of writing, and has a passion for civil debate. He resides in Bellevue, Washington.

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