A Bigger Nuclear Option: Packing the Supreme Court

The Republicans have unleashed the so-called “nuclear option,” ending the filibuster for Supreme Court justices, to put Neil Gorsuch on the bench. An extreme right-wing court seems cemented in place for decades to come.

This disregard for precedent may present an opportunity should the Democrats or a progressive coalition return to power. The Republicans used extreme maneuvers to get to this point, and it will take equally extreme measures to restore balance. The end game, however, must not a power grab for one faction or party. The progressive coalition that has formed in the wake of Trump must push for a deep democracy rather than giving in to the temptation of engineering a system that favors one political party or faction.

Faced with a right-wing activist Supreme Court, progressives, should they ever return to power, will need to replicate a maneuver that Franklin Delano Roosevelt attempted in 1937 after the Supreme Court had blocked several of his New Deal reforms: passing a special law that allows a president and Congress to “pack the court” with favored justices. Congress severely rebuked Roosevelt, setting a historical precedent. Such a maneuver has never been attempted since, but Republican breaking of precedent has changed the equation.

The federal government has long operated by “unwritten laws,” such as the filibuster, not actually part of the Constitution, but considered integral to tradition that keeps government stable. One such unwritten rule is that the Supreme Court shall consist of nine judges. Should the Democrats or a progressive coalition ever return to power, it will be time to break that tradition and ensure a one justice majority willing to reverse a series of reckless decisions that have undermined democracy. By allowing unlimited secret money into election campaigns and by reversing laws that protect against voter suppression based on race, the so-called “conservative” — but really radical right — majority has abrogated its stance as guardians of the law, of democracy and of justice.

Republicans have brought about the need for extreme measures by disregarding and overturning a number of legislative precedents. They repeatedly used the filibuster to block Obama’s picks for judges, refused to hold hearings for Obama’s Supreme Court nominee, and now have ended the filibuster for Supreme Court nominees.

Perhaps the first sign that the Supreme Court was acting as right-wing activists rather than as guardians and interpreters of law came in the 2001 Bush v. Gore case. There, the court handed the presidential victory to George W. Bush as declared by the Florida Secretary of State appointed by his brother. A court concerned with ensuring democracy would instead have insisted that every vote be counted, which would have given the election to Al Gore, the popular vote winner. The resulting Bush presidency, one of the worst in history, makes clear the extremity of this decision.

Failing to learn from this mistake, the right-wing activist Supreme Court justices further weakened democracy in the 2010 Citizens United decision. Shockingly, the justices went further than the plaintiffs had asked, removing campaign reform protections and allowing corporate money to flood in, just in time to influence that year’s election. As a result, secret money has flooded into campaigns, many at the local level, quite possibly leading to subsequent Republican takeovers of governorships and local legislatures. These, in turn, will be crucial for further gerrymandering of our already broken political system following the 2020 election, unless the Democrats can take back power at the state level by then.

The string of radical Supreme Court decisions overturning precedent and helping Republicans win elections continued in 2013, when the “conservatives” overturned a key part of the Voting Rights Act, allowing Southern states to change their election laws. State-level Republicans used the ruling to limit early voting, close polling sites and require photo IDs, among other measures, disenfranchising minority voters who would almost certainly have voted Democratic. In North Carolina, for instance, a federal judge, in striking down the changes, declared that “the new provisions target African Americans with almost surgical precision.” Even worse, the “conservative” justices were overturning a law that, in 2006, had support from Republicans as well as Democrats. One branch of government — and really only five individuals from that one branch — were thus undermining the consensus reached by another branch over decades of hard negotiation and experience.

The Supreme Court — or at least the five “conservative” members — has thus shown itself, in a series of decisions, to be little more than Republican Party activists in black robes. The desire to maintain this power explains why, for eight months, Republicans refused to hold hearings on Merrick Garland, whose appointment, by a president twice elected with a clear majority of the popular vote, would have ended the reign of activist justices. This blockade came in spite of the fact that the Constitution states that the president shall “nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

The long-term response of the Democratic Party, and of progressives who might support them, should thus be clear. At such time as a Democratic or progressive president is elected with a majority of even one vote in the Senate and the House, the law must be changed to allow a one-time packing of the Supreme Court with justices who will undo the depredation of the right-wing activists. They can do so by passing a law allowing more than nine Supreme Court justices, which would break precedent, but would be constitutional, mirroring recent Republican actions in order to reverse them.

Passing such a law would require a final overturning of the filibuster rule on legislation that some uphold as a check on majority overreach. Yet recent Republican action has shown the shallowness of the filibuster, which has no part in the Constitutional scheme of checks and balances and famously was used to block civil rights legislation. As Steven Waldman explains in a recent New York Times editorial, “The switch to supermajority rule happened without a constitutional amendment, without a national debate, without its even becoming a major issue in a presidential campaign.” The filibuster is actually a brake on democracy, used to block more judicial nominations in the first five years of Obama’s presidency than on all previous presidents combined.

Following years of Republican obstructionism and radical overturning of precedent by the Supreme Court, then, the idea of ending the filibuster outright and “packing” the Supreme Court is less extreme than it would have seemed even a decade ago. It might be described as the surprise nuclear option in response to the long-debated Republican nuclear option.

Yet such a “new nuclear option” of packing the Supreme Court is too dangerous to use more than once, and then only due to extreme circumstances. A new Trump will appear at some future time and it is best to limit his (or her) power. It would, itself, risk overturning any time a new administration steps in. The idea must never be to advantage one party or faction over the long term. The Democrats used gerrymandering to their advantage in the mid-20th century when they were the majority party and have lived to regret it.

The goal must be to restore full democracy, so new laws will need to be passed, via a constitutional amendment if possible, to encourage a moderate Supreme Court. The court should be restored to nine justices. These would, ideally, serve for a set time period, perhaps 15 years rather than the lifetime appointment that today makes picks for the court an existential decision. Furthermore, the term “advice and consent of the Senate” for these crucial appointments needs formal guidelines, with rules ensuring a fairer and smoother process, to avoid holding up an appointee while awaiting an election.

Should a progressive majority ever retake the federal government, the strategy of “packing” the Supreme Court should be one in a series of actions designed to restore and strengthen a democracy currently under assault. It is crucial to ensure that every citizen can vote and can do so easily. It is crucial, also, to lessen the influence of big money in politics. The intention cannot be to keep the Democrats, or any one party or coalition, in power. One should never place party before country, but neither should one place country above the universal ideals of democracy and human rights. The goal must be to reverse the permanent state of conflict employed by today’s radical rightists and move to a deeper version of democracy.