Kamala Harris wants to talk about closing the Supreme Court.
Last Wednesday, during a video event organized by the advocacy group Win With Black Women, the former vice president denounced a long list of democratic reforms that could be part of an “expanded playbook” that Democrats can use to undo a series of recent policy losses, including the recent decision of the Republican Supreme Court. repeal the 1982 amendment to the Voting Rights Act.
Harris’ list included Puerto Rican statehood and DC, congressional districts, a code of legal ethics for Supreme Court justices, and a vague proposal to reform or eliminate the Electoral College. It also included “the idea of reforming the Supreme Court, which includes expanding the Supreme Court.”
Court packing, or increase the seats in the court to change its ideological or party structure, was considered a radical idea as recently as a decade ago. President Franklin D. Roosevelt proposed increasing the seats on the Supreme Court shortly after his landslide victory in the 1936 presidential election, but his proposal. it landed with a thud in Congressand many historians blame Roosevelt’s plan to close the courts for breaking the coalition that allowed him to enact the New Deal.
Since then, many American political leaders have approached the idea with trepidation. President Joe Biden he tried to deceive the Democrats angered by the Republican Party’s dominance of the Supreme Court by appointing a toothless advisory commission. Harris he tried heartily to play around the topic when it came to his 2020 debate with former Vice President Mike Pence.
But the idea has become commonplace in the last 10 years. In February, Utah Republicans filled their state’s supreme court after the court upheld a challenge to the state’s GOP-friendly congressional maps. Republicans also added seats to the Georgia and Arizona supreme courts in 2016.
Democratic support for impeachment, meanwhile, has largely come from high-flyers or from unknown politicians seeking to enter the national stage. Pete Buttigieg, then a small-town mayor making a long-term bid for the presidency, proposed a difficult issue. planning in 2019 to create an ideologically balanced Court of 15 justices. Graham Platner, a Maine Democrat campaigning for the US Senate on an anti-establishment message, it also supports court loading.
Harris, by contrast, is the latest nominee of the Democratic Party. So he is one of the main people in the establishment of the party. The fact that he is now floating this radical reform beyond the Supreme Court suggests that the idea is increasingly palatable to the Democratic center.
But is closing the courts a good idea? One of the primary advantages of court loading is that it is constitutional. Congress can add seats to the Supreme Court and common law, when more moderate proposals, such as term limits for judgesof course it would require a constitutional amendment.
But the fact that it is easy, at least as a constitutional matter, to fill the Court is also a reason to fear in the near future where filling the court is a common political technique used by political parties that want to gain control of the Supreme Court. If Democrats pack the Supreme Court in 2029, they virtually guarantee that Republicans will retaliate the next time the GOP controls Congress and the White House.
The Constitution makes it very difficult to pass moderate reform of the Supreme Court
The Constitution does not say how many judges will sit on the Supreme Court, and Congress changed the number several times before. The Judiciary Act of 1789 established a six-judge Court, and the Supreme Court briefly had 10 justices during Lincoln’s administration.
If it had a vote, in other words, Congress could convene a 15-justice Court or even a 5,000-justice Court tomorrow, creating a whole series of vacancies that could be filled by the sitting president.
An overcrowded Court would reduce legitimacy, and thus would be less able to undo the greater damage of the current Court.
The same cannot be said about many of the less popular and more popular reforms. A recent YouGov poll, for example, found that nearly three-quarters of American adults support term limits for judges. But the Constitution states that judges of the Supreme Courtthey will hold their positions during good behavior,” a provision historically understood to protect federal judges from removal unless they are involved in serious misconduct.
Similar problems arise from other proposals to reform the Court. Justice Samuel Alito, for example, it was due in 2023 that a law imposing ethical standards on judges would be unconstitutional because “there is no provision in the Constitution that gives (Congress) the power to control the Supreme Court.”
He is wrong. Article Three of the Constitution states that the Supreme Court has the jurisdiction to appeal in many cases “under such Rules as Congress shall establish.” But the text of the Constitution doesn’t matter at all if five justices are willing to strike down the law regardless of what the Constitution says.
Of course, it is possible to imagine the Supreme Court also trying to overturn the bill to fill the courts. Therefore, if Congress were ever to decide to add more seats to the Court, it would be wise to quickly confirm the president’s nominees to prevent the judge from issuing an order before the new justices join the bench.
But even if the justices made an attempt to block the bill to close the courts, they would have a hard time coming up with a legal argument, because there are many historical examples where Congress changed the size of the Court.
But is anyone listening to the full Court?
The main benefit of judicial overload is that it would be difficult for the current majority of the Court to undermine legislation that would overwhelm the judiciary if it were to actually pass Congress – once the Court is overwhelmed, the Republican justices who currently control it would be a powerless minority.
In reality, however, the newly created Court would struggle to impose its will on red states and other Republican Party strongholds.
Historically, courts have it depended on voluntary compliance to carry out their orders. The federal government has an agency, the US Military, that enforces federal court orders. But that tool employs less than 4,000 law enforcement officers. Meanwhile, the federal courts hearing hundreds of thousands of civil cases each year. So if a large number of federal defendants refused to comply with court orders because they viewed highly politicized courts as illegitimate, the government does not have sufficient resources to enforce more than a few court orders.
The implementation crisis could worsen if the government refuses to comply with the Supreme Court’s order. States, after all, have their own police forces and other armed personnel who can challenge federal authority. The great resistance campaign of the South Brown v. Board of Education (1954), the historic decision to desegregate schools, to a large extent he was successful for 10 yearsuntil Congress passed a law giving the federal government new tools to implement that decision. Before Congress got involved, the federal government often had to send the army when it decided to implement Brown against stubborn nations.
Therefore, if the full High Court tries to recover Roe v. Wade in anti-abortion states, or if it would require those states to redraw their congressional maps to comply with the Voting Rights Act, the states could simply refuse. And, if the federal government tries to implement the Court’s order, it could risk starting a violent conflict with the armed forces of the state.
Judicial packing, in other words, would probably be effective if the goal were to prevent the Supreme Court from enforcing more Republican Party policies from the bench. But it might not work if the goal was to force Democratic policies on Republican states. A crowded Court would have reduced legitimacy, and thus would have been less able to undo the worst damage of the current Court or to replace the Court’s current right-leaning policies with a more liberal alternative.
Another danger is that, if the Democrats pack the Supreme Court, they will be confident that they will continue to win elections in the future. Because if the Republicans regain control of Congress and the White House, they can immediately fill the Court with enough judges like that. Samuel Alito to make sure the Republicans don’t lose another federal court case.
The price of closing the Court, in other words, is very high. That price may be worth paying if the Supreme Court says so prejudice against voting rights and for the Democratic Party that Democrats risk being locked out of power forever unless they change the makeup of the Judiciary. But the crowded Court will be greatly reduced, and the very serious risks of reversing the plan should be considered. Red states are unlikely to unite if a majority Court starts interfering with their election or abortion policies, even if all this Court does is restore the same civil rights protections that existed until the Roberts Court came along.
