Expanding the Court

UPDATE: I stand by the concerns about adjusting the size of the Court, but I suspect I was hasty in criticizing the six-month deadline. The membership of the Commission is excellent, and I wish it well. I’m leaving the post in place below.

President Biden has announced a 180-day commission that will study reforms of the Supreme Court, including expanding its membership and limiting justices’ terms. There may be good reasons for some of these. The roadblock that conservative justices present to progressive priorities right now is not among them. Consequently, the most revealing and disturbing aspect of the Biden commission is the speed with which it must move. The six-month deadline strongly suggests these reforms have less to do with constitutional needs than with immediate priorities.

The Supreme Court does not, and should not, operate on ordinary political time. The fact that conservatives have a lock on the Supreme Court for now, and perhaps for the next couple of decades–though, with Chief Justice John Roberts as a swing vote and other conservatives, like Neil Gorsuch, proving intriguingly hard to predict, the extent of their actual control is unclear–should be irrelevant. If there is a case for a 15-member Court, it should be made on its own terms. There is nothing about this task that requires the urgency of a 180-day shot clock, and much about it that requires deliberation and removal from the controversies of the moment. (It is also possible that Biden, who campaigned as a constitutionalist, understands this and is offering up the commission to stave off progressive pressure. That does not explain the six-month time frame. The Commission, it should also be noted, does have some excellent conservative members, including Jack Goldsmith, Adam White and Keith Whittington.)

The alternative is to argue that this moment in political history is somehow so central to the future of the republic–the hinge on which all tomorrows turn–that it requires operating outside of ordinary constitutional norms. First, it is not. The republic is not under existential threat, despite the conceit of pundits and politicians that it is. The best way to recover from Trumpism’s erosion of constitutional norms is to return to them, not to react on equal and opposite grounds. Second, those making such an argument bear the burden of distinguishing themselves from those who argued similarly that to justify Trumpism. As John G. Grove writes at Law and Liberty, some conservatives are renewing a comparable argument to justify abusing the courts while they control them.

It is true, of course, that the size of the Court is a legislative matter. But its immunity from contraction or expansion for purposes of manipulating its membership is now a longstanding constitutional norm. As Tocqueville taught, unwritten norms of political behavior matter as much as constitutional requirements. If there is a structural reason to expand the Court, let it be explained. But let it be explained apart from transient disputes and on a timetable more suited to constitutional deliberation.

One thought on “Expanding the Court

  1. I appreciate the rational take on this. Although, I do think we should pick a number and stick to it because of the mutually assured destruction it would cause if whoever has the minority on the court keeps wanting to add justices.

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