When proposals are made to increase the size of the US Supreme Court and appoint new centrist judges, there is an understandable reticence of anybody to ‘pack the courts’. I think that the reticents should come straight out and say that they hate court packing.
In the last decade, we have seen the most sustained exercise in court packing in the history of the US and Joe should ask all reasonable Americans to join him in condemning it.
As we know, the GOP held up and rejected a record number of nominees, left vacancies for Trump to fill, held up the replacement for Justice Scalia for a year, and brought forward the filling of the Bader vacancy. They got rid of the filibuster for Supreme Court judges. They have sought out and nominated judges whom they claimed would change American law by overruling long standing precedents and disallow legislation they do not like. What is worst is that they have sought, and in some cases achieved, judicial outcomes that sandbag Republican politicians by voter suppression, gerrymandering, and allowing more and more money to pollute US politics and skew the US political system to favour them and their backers.
Republican legislatures have been expanding the number of justices on their state supreme courts and they have boasted about all of these measures other than the last.
The question is, what can decent Americans on both sides of politics do to rebalance the court, following a decade of court packing? One obvious and much debated response is to rebalance the court by expanding it.
Republican court packers decry this as ‘court packing’ – displaying rank hypocrisy and the most brazen example of chutzpah. This kind of rank hypocrisy does not mean that Democrats should engage in the same actions as these Republican partisan zealots. Such hypocrisy merely deals GOP zealots out of reasoned discussion.
Some think that such expansion and re-balancing is wrong and two wrongs don’t make a right. To that I would say that wrongs must be addressed – not just to right that wrong, but to deter future wrongs. If we allow every affront to, and erosion of, democracy to go unanswered, we will soon have no democracy left.
One might short circuit the debate by arguing that expansion of the court is not only explicitly allowed for in the constitution but has been done before. However, powers can be abused. They have been abused by the Republicans and Democrats should not abuse those powers when they are in their hands. But the question is what uses of power are legitimate, and which are abuses.
This brings us to the question: How should reasonable Americans respond to the court packing by the extremist republicans who have taken over the GOP?
First, they should look at how much damage has been done and how dire the situation has become. At first sight it is every bad. There used to be five bulwarks against the kind of court packing/stacking:
1. The regular changes of Presidents and their parties usually means that there is a range of presidential nominators and hence a range of nominees on the Court.
2. Respect by the Senate for the president’s right to nominate meant that a majority opposing party did not always use its majority to oppose the nominee and a minority opposing party did not exercise its right to filibuster.
3. However, with filibusters an ever-present possibility, this had tended to be something of a moderating influence on the justices nominated and accepted.
4. The experience of new justices in the court tended to moderate them – making collective judgements, being just one newbie on the block and needing to persuade others.
5. Nominees will refuse to discuss with nominating presidents or senate committees on how they will rule making it harder to guess how they will rule and hence making it harder to pack with likeminded judges. The first three have been under direct attack by the Republican extremists. The fourth was endangered because of the rapid influx of 3 new justices who may seek to become the core of new more radical majorities.
Groups like the Federalist society have been trying to take the guesswork out of the fifth. We see the disconnect between Trump who confidently said he would appoint judges who will overturn Roe v Wade, and the judges saying that they would have to listen to arguments of counsel. Is there something about the judges that the Federalist society knows that the judges do not know or will not admit to themselves and/or the senate committee?
With the consequent erosion of those five bulwarks, I would conclude that things are really bad. We could wait and see if the court decides to self-moderate in the way it did during the 1930s. But the decision to overrule Roe v Wade and the reasoning used to justify it, indicates that waiting is more likely to produce more radical re-writing of American Constitutional Law than any kind of moderation. But more urgent action is needed to deal with the current and future situations.
In October 2020, I suggested to some of my American friends that if the Democrats gained control of both houses and the Presidency, Biden should expand the court, appoint three more judges, and leave one vacant to be nominated by a new method to be established appoint a presidential commission including Democrats, Republicans and independents (for those from Congress, he should choose senators who have been one of the joint sponsors of a bi-partisan bill). There are many models in Commonwealth countries where Judicial Commissions have been established.The Senate would have to exclude this bill from the filibuster rule. To those who object, we should simply say:
‘What was done without having to overcome a filibuster can be undone without having to overcome a filibuster.’
The GOP packed the court with these justices by removing filibuster ‘protection’. Unpacking the court should not have to face a filibuster.This principle should be applied to undoing the other calumnies that have been perpetrated by Republican controlled legislatures, almost always in legislatures where filibuster rules were not in place – voter suppression and gerrymanders.
Professor Charles Sampford is Director of the multi-university Institute for Ethics, Governance and Law headquartered at Griffith University. Charles topped politics, philosophy and law at Melbourne, combining them in his 1986 Oxford DPhil. In 1991, Griffith approached him to be their Foundation Dean of Law. He has led the only Australian Research (ARC) Centre and only ARC network in law or governance and has led governance projects on five continents. Visiting appointments have included a Senior Fellowship at St John’s College Oxford and Senior Fulbright Award to Harvard. In 2008, his work on ethics and integrity systems was recognised by the ARC as one of the 20 researchers across all disciplines who had had the greatest impact. He has completed 32 books and over 150 essays and articles. He is also a Barrister with various Board appointments.
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