- Michael Gordon is a longtime Democratic strategist, a former spokesman for the Justice Department, and the principal for the strategic-communications firm Group Gordon.
- This is an opinion column. The thoughts expressed are those of the author.
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With the Supreme Court taking up a case that effectively would kill the groundbreaking Voting Rights Act, this is a good time to take stock of the Court.
The current right wing majority reviewing the case was appointed by presidents who came to power without the popular vote. John Roberts and Samuel Alito were appointed in George W. Bush’s second term, but of course he won his first term in a disputed electoral squeaker while losing the national popular vote. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed by Donald Trump, a significantly bigger loser when it comes to the national vote.
So five of the six conservatives who make up the 6 to 3 majority were appointed by presidents without majority support. And all of Trump’s appointees brought controversy: Gorsuch and Barrett through the twisted logic of the Republican Senate to ensure their appointments, and Kavanaugh under a cloud of sexual misconduct allegations.
So when the Republican Senate smashed all semblance of norms by holding up a Democratic Supreme Court appointee to jam through Gorsuch – and then jammed through Barrett with the opposite narrative, the question became how would Democrats respond. One highly discussed idea was that the party should add seats to the Supreme Court if they came to power in 2021, a concept called court packing. Well now we’re here, and the Democrats have the chance to give America a Supreme Court that represents America.
To pack or not to pack
Chief Justice Roberts has tried in some cases to steer a moderate course for the Supreme Court – despite its heavily conservative lean – in order to keep it out of political and media crosshairs. As a result, there have been some surprises over the past year where one or more conservative Justices joined the liberal wing on a major decision, including an extension of the 1964 Civil Rights Act to protect LGBTQ employees and a decision to uphold DACA.
Roberts knows that history has its eyes on him, but his work will be 20% harder with the Republican majority going from 5 to 4 to 6 to 3. If Barrett turns out to be as reactionary as Thomas and Alito, Roberts’ desire to stay above politics becomes irrelevant.
Combine that with the Republican Senate’s 2016 zig and 2020 zag on filling Supreme Court vacancies during an election year, and the idea of packing the Supreme Court has taken on new urgency.
There are a number of different ideas for reforming the Court beyond packing. One proposal suggests limiting terms to 18 years. Another proposes more regular appointments, with each President appointing a Justice in the first and third year of each term. President Biden has also called for a bipartisan commission to look at these and other possible reforms to the Court.
Substantively, drawing on one or more of these ideas to change how and when Justices are appointed can counter the Republicans’ naked power grab and put the makeup of the Court more in line with the American majority. But politically, making any changes to the court is a tough sell for the Democrats.
From a procedural perspective, adding judges to the Court is well within Congress’ power. The Constitution does not set a number for Supreme Court Justices but gives Congress the power to determine how many sit on the bench.
The current makeup of the Supreme Court with nine Justices only began in 1869. Before then, the number fluctuated, with the original number in 1789 set at six, followed by changes down to five in 1801, up to seven in 1807, nine in 1839, and briefly ten during the Civil War, then back down to seven in 1866 until it landed on nine in 1869. Changing the makeup is surprisingly easy. Legislation to do so would need to pass both the US House of Representatives and Senate with simple majorities and then get the president’s signature.
But the length of the current make up means every American knows only a Supreme Court with nine Justices – with many likely not realizing that change is doable – makes the Democrats’ narrative that much harder. It would be easy for the Republicans to put the Democrats on defense on this issue, and it would distract from the many other agenda items that President Biden wants to accomplish.
So if packing is too high a bar, there are other tactics the Dems can employ. The last two Democratic presidents had Supreme Court picks in their first year in office. If history holds, Justice Stephen Breyer will step down and make way for a new appointee.
As a rule, the Republicans have been much better than the Democrats at appointing younger Justices to the Court, as well as throughout the federal judiciary. The average age of Trump’s appellate judge appointees, for example, was 47 – five years younger than Obama’s – and 76 of the youngest 100 federal appellate judges have been appointed by Republican presidents.
Two of the Republican Justices – Thomas and Barrett – were in their 40’s when they were confirmed. If he gets vacancies, President Biden needs to pick someone in their 40’s who can have a long life of influence on the Court.
In the past 52 years, there have only been four Justices appointed by Democratic Presidents. During that same period, there have been 16 Justices appointed by Republicans. Liberal Court members William Brennan and Thurgood Marshall both retired when George HW Bush was president, changing the balance and sway of the court to this day.
Democrats need to ensure that their Justices retire when they have the power to replace them. If they don’t take control of their fate, the Republicans will control it for them, as we saw with the replacement of Justice Ruth Ginsburg.
Democrats also should not hesitate to condemn the Supreme Court when it makes decisions that are out of step with the mainstream. They should be strong and remind Americans that this Supreme Court did not come to power via majority rule and does not adjudicate the will of the majority. If they start to play the long game that Republicans have played for a half century, the Democrats can begin to ensure that our nation’s highest court reflects our highest values.