Among Democrats, A Growing Appetite To Alter High Court

Law360 (September 26, 2020, 5:59 PM EDT) -- Vows from President Donald Trump and the Republican-led Senate to quickly confirm Judge Amy Coney Barrett as Justice Ruth Bader Ginsburg's replacement are likely to unleash liberal efforts to add seats or restrictions to the high court — ideas dismissed as risky or wild just months ago.

The liberal icon's death and the court's seemingly inevitable shift have inspired visions of a golden age for conservatives and an era of horror for liberals: The landmark abortion decision Roe v. Wade would be vulnerable, anti-discrimination laws could be in jeopardy, the Affordable Care Act could be dismantled, and regulations could face a more hostile judiciary.

From the corridors of the Capitol to the halls of academia, structural reforms like adding seats to the high court or trimming its jurisdiction are being given a more serious look, particularly by those on the left.

Leaders from three top liberal legal groups declined to delve into details on their plans, saying their attention is focused on blocking Trump's nominee. When pressed about making more fundamental changes to the court, however, they each offered some variation of the same response: "Everything is on the table."

"What we've been seeing the past couple of years is an erosion of trust and legitimacy of our courts," said Zinelle October, executive vice president of the American Constitution Society. "Everything should be on the table. We should think very broadly about it."

The inevitably brutal confirmation process for the next high court nominee, and its potential aftermath, follows decades of political escalation that has grown to consume the entire federal judiciary.

Republican Majority Leader Sen. Mitch McConnell of Kentucky has vowed to hold confirmation hearings for Trump's nominee and has the votes to do it. Democrats, meanwhile, appear to be powerless to halt the process using conventional means without at least four Republican defectors.

This leaves liberals facing the likely prospect of a heavily conservative U.S. Supreme Court for perhaps a decade or longer. Their only remedies in sight are structural.

Among these, the most discussed is the idea of "court packing," in which the party in power would add more seats to the nine-member high court and fill them with more palatable justices. It had been a topic among Democratic presidential primary candidates as far back as last year, but Joe Biden has declined to address the topic.

It isn't a new idea, and it would only take legislative action to do; the number of seats on the high court is determined not by the Constitution, but statutorily. In 1937, President Franklin Delano Roosevelt pushed to set the number of seats at 15 after the nine-member high court issued rulings against his New Deal. His proposal went down in flames in Congress.

The approach has more recently seen a revival, particularly after Justice Ginsburg's death.

In a Los Angeles Times opinion article, University of California-Berkeley Law School Dean Erwin Chemerinsky urged Democrats to vow to grow the court to 13 justices if Republicans fill Justice Ginsburg's seat and lose the election.

And on Friday, a trio of progressive House Democrats proposed a bill that would set an 18-year term limit on future U.S. Supreme Court justices and almost certainly temporarily expand the court beyond nine justices. The legislation is likely to serve as a warning shot, as it doesn't have support among Democratic leadership.

Packing the court might not be a clear-cut victory for Democrats, some legal scholars argue.

Pragmatically, Democrats would need to take control of both the White House and the Senate in order to actually do it. There would also be nothing to keep Republicans from further packing the court when the tables are turned.

University of Chicago Law School professor Ryan Doerfler and Yale Law School professor Samuel Moyn argue in a forthcoming paper for the California Law Review that packing the court would be a short-term, democratically risky and "nakedly partisan" solution. The scholars instead advocate reforms that would remove some power from the high court and transfer it to the political branches of government, such as stripping parts of the court's jurisdiction or imposing supermajority voting rules for judicial review.

"Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections," they wrote.

Andrew Jennings, a lecturer at Stanford Law School, wrote in another draft California Law Review article that tweaking high court procedures would be less politically explosive and, in his words, make the high court's docket "more boring."

The court has long abided by the informal "Rule of Four," meaning that the court doesn't grant certiorari to cases that fail to attract the interest of at least four justices. Jennings and his co-author, BraunHagey & Borden LLP impact litigation associate Athul Acharya, suggested that a future Congress could pass a law requiring more than four justices to sign on before granting certiorari.

This could prevent the court from taking up some of the most explosive cases and place the court's focus on sorting out technical matters and resolving circuit splits.

"Most cases the Supreme Court hears are not cases we would necessarily talk about at the water cooler unless we're lawyers or legal academics, but there are those few that are very hot-button, and we'd probably see fewer hot-button issues come to the court like that," Jennings told Law360 in a recent interview.

Jennings and Acharya whipped up the article over the weekend following Justice Ginsburg's death, intending only to guess at options Democrats might consider if her seat were to be filled by a lame-duck president and Congress. The authors didn't advocate for any option and merely pointed out some of their potential effects.

The authors said that altering the high court's jurisdiction could also be plausible, but warned that it could have the unintended consequence of freezing precedent, since some issues would be far less likely to make a return trip to the court.

Partisan concerns are not unique to the high court. A recent report by the conservative Heritage Foundation says that Trump's judicial nominees, down to the district courts, have faced unprecedented levels of opposition from Democrats.

The conservative think tank said more than 90% of historical judicial nominations had been confirmed with little or no opposition. But that trend has not held up in recent years.

During President Barack Obama's last two years in office, the Republican-led Senate held hearings for fewer judges than in any other two years in American history and confirmed just 22, compared with the historical average of 62 for the last two years of a presidency, the report said.

In all, the rate of unopposed judicial confirmations dropped to about 66% during Obama's presidency. During the Trump presidency, it plummeted to 26%, according to the Heritage Foundation.

Thomas Jipping, the report's author and deputy director of the foundation's Edwin Meese III Center for Legal and Judicial Studies, told Law360 that Supreme Court nominations are hard to draw trends from because they come up so rarely. However, he said the fierce legislative tactics and close confirmation votes on district court judges over the past four years have demonstrated a remarkable transformation of the process.

"That, to me, is the bigger concern," he said. "So the question with regard to that is whether, going forward, that's going to become the new normal. And those norms include systematic, across-the-board opposition to nominees, cloture votes on every single nominee, you know, those kinds of things."

He said he isn't sure whether partisan gridlock over judicial nominees will continue into the next administration, or whether this is simply a reaction to Trump. Indeed, Jipping's report notes that feelings of unfairness may have been stoked by the president's electoral college victory despite a loss in the popular vote, and the Republican Senate's nearly yearlong refusal to hold confirmation hearings for D.C. Circuit Judge Merrick Garland, who had been nominated by Obama in 2016.

Add to that the fact that Justice Ginsburg was perhaps the most iconic liberal justice and that her dying wish was reportedly to delay replacing her until next year — a wish that does not seem to have swayed any Republican lawmakers.

Scores of Democratic politicians have blasted the most likely outcome.

"Senator McConnell has defiled the Senate," Minority Leader Chuck Schumer of New York wrote. "Senator McConnell and Senate Republicans are trying to steal two Supreme Court seats four years apart, using completely contradictory rationales."

Jipping said the rationales weren't contradictory at all. The 2016 election was certain to result in a new president, he said, and Republicans had control of the Senate.

The acrimony is likely to play out during confirmation hearings, which could begin in coming weeks. Jipping lamented the weaponization of the confirmation process in his report, and said he expects to see unfairness leveled at Trump's nominee.

Attempts to pack the courts would be to repeat Roosevelt's historical failure, which led to a humiliating legislative defeat at the hands of his own Democrats, Jipping said.

"That's exactly what this is about: a hostile takeover of the Supreme Court," Jipping said. "For no other reason than just simply to achieve a Supreme Court that will deliver the goods."

--Additional reporting by Andrew Kragie. Editing by Kelly Duncan and Bruce Goldman.

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