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Enough playing nice. It’s time to pack the courts

Moira Donegan


Anyone who still clung to the fiction that the federal judiciary is not a political entity should have been disillusioned watching Brett Kavanaugh’s performance at his confirmation hearing. Kavanaugh, who has been multiply and credibly accused of sexual assault, threw a tantrum that could rival any toddler’s when he was called before the Senate judiciary committee following the testimony of one of his accusers, the psychology professor Dr Christine Blasey Ford. Unwilling to engage with the substance of her accusations, Kavanaugh gave a red-faced and spitting partisan rant, whining that his ascent to power had been delayed and smearing the Democrats whose agenda he is all but openly eager to defeat from the bench. Kavanaugh lashed out at his political enemies, decrying Democrats and saying that his appointment was being delayed as part of an effort of “revenge on behalf of the Clintons”.

With this little display, Kavanaugh was all but admitting something that only the most naive or ill-informed observers of American politics don’t already know: that federal judges function as politicians, who are appointed less for their flimsy pretense of interpreting the law than for their real purpose, which is to enact and protect the policy agenda of whichever party commands their loyalty. Republicans have been behaving as if this is true for decades, campaigning on their ability to appoint judges that will enact conservative agendas and stymying or denying the confirmations of liberal judges. It is time for the Democrats to drop the pretense that the judiciary is apolitical, and admit that no progressive agenda can be enacted or maintained without a drastic overhaul of the federal judiciary. The next Democratic president must pack the courts.

Related: Trump made the conservative dream of remaking the federal judiciary true | Andrew Gawthorpe

Court packing – that is, expanding of the number of judges on the federal bench, with the supreme court being the most commonly discussed – was a proposal memorably put forward by Franklin Delano Roosevelt. Roosevelt wanted to advance his New Deal, a series of economic stimulus and job creation programs that were meant to lift a desperate working class out of the suffering and indignity of the Great Depression. But Roosevelt’s New Deal agenda was too far to the left for the conservative court, which repeatedly struck down its provisions. To protect the New Deal and advance the wellbeing of a people desperately in need of aid, Roosevelt proposed expanding the supreme court from the traditional nine judges to 15.

Technically, court packing is legal. The appointments clause of the constitution stipulates that federal judges must be appointed by the president with the “consent” of the Senate, but it does not say how many judges the federal courts should have. But Roosevelt’s court packing scheme was controversial: supreme court justices knew that it would dilute their power and worried that the court’s reputation would be damaged by such a naked manipulation of its political function. They quietly worked with senators to foil the plan, but the threat of court packing led them to finally acquiesce to Roosevelt’s populist agenda, allowing some New Deal provisions to be upheld that ultimately helped many working people.

For his part, Roosevelt undermined his own effort when he framed his court packing bill not as a plan to make the court more liberal, but as a necessary because the supreme court’s justices were too old to do the job themselves. It was a flimsy, mostly fictional alibi that everyone could see through: the pretense that the court was not a political body was wearing thin even then. Ultimately, the court packing scheme failed, but Roosevelt succeeded in using the threat of expanding the judiciary to protect his agenda.

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As a revived left wing exerts influence over the Democratic party, building power through organizing and expanding the political imagination of the country, policy goals such as Medicare for All and a Green New Deal have garnered popular support. They offer a vision of a political reality that is more compassionate, more sustainable and more humane to the most vulnerable. But none of these will be sustainable without court packing. With the supreme court and the lower federal courts packed with Republican-appointed judges, they will be stayed, delayed, diluted, hollowed out and eventually struck down.

Just look at what has happened to the Affordable Care Act (ACA). A partial stopgap measure meant to mitigate the worst effects of a private medical system, the ACA was not the comprehensive overhaul of the healthcare system that we need, as Medicare for All is. But Obamacare offered healthcare subsidies, a requirement for insurance companies to cover pre-existing conditions, and the expansion of the federal health coverage program for low-income families, Medicaid. These interventions saved lives. But even the comparatively modest improvements of the ACA have been tied up in court since the law’s passage nearly a decade ago, and conservative judges have succeeded in hollowing out the law and leaving many Americans without the health coverage that it was intended to give them. Without court packing, any progressive agenda – from Medicare for All to a Green New Deal to protections for reproductive rights and voting rights – will meet the same end.

Many federal judges are thoughtful, fair-minded people who take their mandate to faithfully interpret the law seriously. But many others are all but open servants to the political agenda of the Republican party, issuing opinions that distort the law in near-unrecognizable ways in order to make the country less equitable to the marginalized and more friendly to the white, the male and the wealthy.

Not only do federal judges exert massive influence over policy without being elected or held accountable by voters, but they often work in direct opposition to the people’s will. Sean McElwee, a progressive pollster with the advocacy group Pack the Courts, put it this way: “The threat of the supreme court to American democracy is very real.” He continued: “The Republican party is strategically using the court to implement their agenda for the very simple reason that they know the agenda would never be passed by democratically elected representatives. The court has become a mechanism for the revanchist right to avoid electoral consequences for their unpalatable agenda.”

Court packing is not universally popular among progressives, even as it becomes self-evidently necessary. A number of prominent Democratic leaders have come out against it. Pete Buttigieg, the young mayor of South Bend, Indiana, and presidential candidate, has proposed a system of expanding the court but having additional justices chosen not by the president, but by other judges. Senator Bernie Sanders of Vermont, himself a presidential candidate, has speculated about a system in which supreme court justices could be rotated up from lower federal courts. Beto O’Rourke, the former congressman from Texas, has also expressed an interest in an appellate rotation system. But these proposals are only dubiously constitutional, whereas court packing is legal. To Sanders, Buttigieg and others, court packing seems too bold, a risky intervention that could provoke retaliatory packing by the next Republican president. “My worry is next time Republicans are in power they will do the same thing,” Sanders said of packing the supreme court. “That is not the ultimate solution.” Of the appellate rotation plan, Buttgieg said: “It takes the politics out of it a little bit,” which he finds “intriguing”.

The court’s apolitical position is long gone and beyond restoring

It’s a lovely sentiment, this desire to elevate the court to a place of apolitical integrity. But it’s naive, and it does not represent reality. The court’s apolitical position is long gone and beyond restoring. And it is arguable, too, that Republicans have already been packing the courts for years. There was the Senate Republican’s brazen disregard for former president Barack Obama’s appointment power following the death of Antonin Scalia, where Mitch McConnell and other Republicans effectively lowered the number of supreme court justices from nine to eight for the duration of Obama’s term – denying his pick, Merrick Garland, a hearing and reserving the seat until a Republican president was installed and a conservative judge, Neil Gorsuch, could be placed on the court.

Republican obstructionism in the Senate has effectively narrowed the power to appoint federal judges to Republican presidents only for the lower courts, too. To less fanfare, the Republicans held open dozens of seats on the lower federal bench during the Obama administration, so that those spots could be packed with conservatives by the next Republican president.

To this end, Republicans have been aided tremendously by the Federalist Society, a pernicious association of craven reactionaries who aim to groom young, healthy rightwing lawyers and law students for long careers on the bench, and whose alumni now account for five of the nine justices on the supreme court, and dozens more on lower federal courts. The Federalist Society was formed in 1982 with the express purpose of hijacking the federal courts, and it has gained tremendous influence in the intervening decades. There is no leftwing equivalent.

It is understandable to want to be cautious, and it is noble to admire the non-political ideals that the courts are nominally meant to embody. But the stakes are too high for Democrats and leftists to indulge in polite fictions of what the judiciary is, or to engage in pious reverence for old norms and ideas that the Republicans have long since trashed. Healthcare, the climate, women’s rights over their own bodies and the rights of African Americans to vote are all on the line. It is time to pack the courts. The right wing has left us with no choice.

  • Moira Donegan is a Guardian US columnist