The passing of liberal stalwart Ruth Bader Ginsburg and the prospect that President Trump will replace her with a conservative naturally has Democrats panicked and Republicans giddy. The fact Trump won despite a deficit of nearly three million and has already appointed two Justices—including one that rightly should have gone to his Democratic predecessor—adds to the sense of outrage and has sparked talk of “packing” the Court by expanding it beyond the customary nine members. While understandable, this would permanently end the legitimacy of the judiciary and undermine the delicate balance that has held the nation together.
My longtime friend and colleague Steven Taylor, who shares my general instincts on these matters, defends expanding the Court as a necessary evil—a regrettably necessary further breaking of norms in order to correct the injustice of a deeply unrepresentative system that can’t reasonably be fixed through more normal processes.
We largely agree on the problem. While I’m perhaps a bit more sanguine about having geography (“states”) factor into representation in a diverse, federal Republic, repeatedly having the most powerful figure in our system chosen by a minority of the voters is deeply troublesome. That this person then gets to choose the judiciary—with the consent of the legislative body also representing a minority of the population—compounds the problem.
We also agree that “that’s what the Framers wanted” is no longer an acceptable answer. First, because it’s simply untrue. We haven’t elected Presidents or Senators according to the original design in a long long time. Second, because the Framers simply couldn’t possibly have foreseen our modern circumstances in 1787.
Further, we agree doing much about any of this is essentially impossible. The Framers, for understandable reasons given the nature of the Confederation as it stood, made it incredibly difficult to amend the Constitution. Indeed, there have a mere 27 Amendments in the 231 years since ratification and that vastly overstates how often there has been real change.*
Like Steven, I would support a rather significant expansion of the size of the House of Representatives. This would be fully in the spirit of the Constitution and, arguably, is actually required by the Constitution. In addition to making the People’s House more representative, it would at least help tweak the Electoral College’s imbalance.
I’m also amenable to systemic fixes to the Supreme Court, such as proposals to allow the appointment of two and only two Justices per Presidential term. So long as that were done prospectively—taking place after the expiration of the current Presidential term—it would help address some of the inequities of the system and also alleviate the angst about octogenarian Justices and the unseemly practice of attempting to hang on until a President of the right party is in office to retire.
So, why not simply agree to “packing” the Court by adding, say, five Democratic Justices? After all, as Steven notes, most of the current Justices were picked by Presidents who didn’t enjoy plurality support. Because it breaks the system.
My preference would be for the Supreme Court to have a much smaller role than it has had in recent generations in shaping public policy. Issues like abortion, gay rights, transgender rights, and the like should be settled through the political process by the elected representatives of the people. But, alas, not only has that ship sailed but, as already noted, the system is inherently less-than-representative.**
Because it has taken on such a huge role, the Court has been a lightning rod for a long, long time. “Impeach Earl Warren” was a popular slogan in the South long before I was born. But, by and large, the Court has been perceived as legitimate by the people and obeyed by policymakers because of that. Even Richard Nixon and Donald Trump complied with their decisions.
Further, despite the above-noted flaws in our system, the Court has by-and-large been organic, slowly responding to the election returns. Here are the nine Justices from the most recent term, including the dear, departed Justice Ginsburg:
| Name | Year | President |
| Clarence Thomas | 1991 | GHW Bush |
| Ruth Bader Ginsburg | 1993 | WJ Clinton |
| Stephen Breyer | 1994 | WJ Clinton |
| John Roberts | 2005 | GW Bush |
| Samuel Alito | 2006 | GW Bush |
| Sonia Sotomayor | 2009 | BH Obama |
| Elena Kagan | 2010 | BH Obama |
| Neil Gorsuch | 2017 | DJ Trump |
| Brett Kavanaugh | 2018 | DJ Trump |
There has been a steady ebb and flow. All of the Reagan Justices have died or retired and only one appointee of GHW Bush remains on the Court—and he was born 15 years after Ginsburg. Ginsburg was not only the oldest Justice on the Court she was the longest-tenured Democrat and the second longest-tenured overall. Breyer is widely presumed to be the next to retire, with the assumption that he’s holding out for a Democratic President to appoint his replacement. The remaining Justices, appointed over the last fifteen years, are expected to remain on the Court for years to come.
With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.
Otherwise, the fact that it is Trump per se appointing multiple Justices is not illegitimate to me, any more than Jimmy Carter’s not getting a single appointment was. He’s the duly elected President and he had every right to appoint Justices to fill vacancies that arose.
Adding four, five, or however many Justices necessary to turn the Court into a rubber stamp for Democratic policies, however, turns the system on its head. Yes, it would be perfectly Constitutional. But it turns what has forever been a steady, organic process into a farce.
_______________
*Eleven of the 27 (1-10, 27) were proposed by the first Congress as part of the Bill of Rights that was promised during the negotiations of ratification. Three (13-15) were a direct consequence of the Civil War. Two others (18 and 21) established and ended Prohibition. That leaves only 11, many of which were the equivalent of software updates to fix bugs.
**To be sure, there’s an argument for devolving many of these issues to the states rather than federalizing them. While that was the default position of our system for most of its existence, our modern society is simply much too interconnected for that to work on many issues.
