Court Packing Ahoy!
The Supreme Court has been stuck at nine justices for about a century and a half now. FDR tried court-packing when his New Deal programs weren't going so well and that didn't exactly go so well for him either. So far, Biden seems somewhat resistant to the notion, but if President Trump gets a nominee through before the election or in the lame-duck session just after the election, he might change his mind in a hurry.
For months now it hasn't really felt like an election year. We were all stuck in this weird hellscape of a year, toiling through quarantine, trying like hell not to get sick, arguing about masks [deep sigh, internal screaming] and generally just trying to take things day by day. In a year when every month has felt like a decade, November has seemed an eternity away and no one really knew what the election was going to be about. COVID, police accountability, systemic racism, anarchist riots, climate change-- there was a veritable menu of issues and disasters we could fling at each other.
Then Justice Ginsberg died and if you're still not sure what this election is going to be about, you obviously haven't gotten the memo yet. It's going to be about this.
I could give a damn about the self-righteous screeching on both sides about hypocrisy or overturning purely imaginary principles. It's a Supreme Court opening. If you switched the parties of everyone involved, we'd still be having the exact same argument. These openings are now brass-knuckled, knock-down, drag-out, apocalyptic fights and no one- and with this President and this Senate Majority leader especially- no one is going to be fighting with the Marquis of Queensbury rules.
Do I feel great about any of this? No. The argument that with an election that has the potential to face court challenges all over the country it might not be the best idea ever to have a Supreme Court that could split 4-4 is a persuasive one. (Likewise, an electoral college tie is a plausible scenario we should all be having nightmares about.) At the same time, there's a bigger dysfunction at work here. How do we defuse the nuclear bomb that Supreme Court fights have become?
There's zero trust on either side. As much as I think both parties should behave like grown-ups and just generally agree to wait until after the election to do this neither the President nor the Republican Senate are under any Constitutional restraint to do so. And even if they were so inclined, there's no guarantee a newly sworn-in President Biden and a Democratic Senate won't turn around and nuke the filibuster and add a bunch of justices anyway. So, what do we do?
First, I think we should acknowledge that expanding the Supreme Court a wee bit might be an idea worthy of consideration. I don't think we need to go nuts and add like ten more justices or anything, but three wouldn't be bad. When the Supreme Court settled on nine justices, we had a population of about 40 million and only 37 states. The idea isn't all that crazy to consider- in the present circumstances, it may seem crazy and risk a tit for tat cycle of court-packing that delivers us a Supreme Court bigger than Congress is now.
Second, to me, these overly complicated plans for 'ideological balance' and independent commissions only obscure what to me, is the real problem. We've got a high court that, once appointed, is subject to precisely zero accountability from the voters. If we're going to talk about abolishing the electoral college (a whole 'nother post) we should also stop and ask ourselves if lifetime appointments to the Supreme Court with no democratic checks whatsoever are a good idea. You'd have to stagger it-- say six years after this election, three justices are on the ballot for straight up or down retention votes. Six years after that, three more. Six years after that, the rest, etc. Six years after a Presidential election year means that a sitting President will have either been replaced or won re-election, so that would mean that in the event of a Supreme Court justice not being retained, partisan disadvantage would theoretically be spread across both parties.
(In other words, if I'm a Democratic President being sworn in 2021, I'll have four years of potential retirements/deaths etc to replace Justices. If I'm re-elected in 2024 that means when retention votes are on the ballot in 2026, I'll have been elected twice by the American people which should lend me a suitable heft of democratic legitimacy should a justice be ousted by retention vote and need replacing. It works the same way with Congress. Six-year cycles mean the American people have multiple electoral opportunities to indicate who they want voting on Supreme Court nominations.)
The downside to this notion: it might require a Constitutional amendment (I'd have to check.) And it could turn these retention votes into political mud fights that could politicize the Supreme Court in an entirely different way than it is now-- and we should probably be hesitant about making the hot ass mess of your average confirmation process potentially worse.
(It's worth noting that when gay marriage opponents came for Iowa's Supreme Court, they got a few of them on the first go-around, but then had to come back in the next election for the other two and voters said no across the board and across the state. You'd have to see what judicial retention votes are like in other states, but they're a different beast from regular partisan voting, I think.)
Finally, there are other good ideas floating around out there. I've seen proposals for regional balance (get some different perspectives from different parts of the country on the court)* and educational balance (break the Ivy League's strangehold on SCOTUS!) and I think I even a proposal to give each state a Supreme Court justice which would be bananas crazy- but what the hell right? Throw them all in the damn hopper- because if the apocalypse breaks out every time there's a vacancy, the Supreme Court is way too damn important. Which says a lot about the continuing disfunction in Congress, especially.
Either way: there's now a non-zero chance that the Supreme Court could be getting bigger for the first time in a century and a half. Not sure how I feel about it in the grand scheme of things, but I guess full speed ahead and court packing ahoy!
*Gorsuch is probably a good example of this. He surprises people now and again, but given he was born in Colorado and served on the 10th Circuit which covers some Mountain Westish/Great Plains states, it shouldn't be surprising that his flavor of Conservatism is slightly different from the overall national melange.