One Nomination won't Save the Courts

The Case for Court Expansion

President Biden is set to nominate the first Black woman to serve on the Supreme Court. We commend and support this historic nomination — but we can’t stop there. For decades, Republicans and conservative dark-money groups have dedicated themselves to the complete takeover of our federal judiciary. Republicans have filled the courts with far-right extremists, all but guaranteeing legal outcomes that have destroyed voting rights, eroded access to legal abortions, undermined workers’ rights, and more. 

Every single issue we care about comes down to the courts. Conservatives understand how important the courts are in blocking progress and protecting conservative interests. That’s why they want to get and keep control of the judiciary to ensure they can achieve their preferred outcomes in court -- by turning the judiciary into a partisan circus.

While we expect the future nominee to be highly qualified, she alone cannot save the Supreme Court from the far-right takeover. The balance of the Supreme Court will still be stacked 6-3 in favor of conservatives. The only way to unrig the courts is to expand it by at least four seats. Contrary to popular belief, court expansion can be accomplished by simple legislation, no constitutional amendment required. 
Keep reading for more information on the history of Republican court packing and why court expansion is the best solution for the crisis we are experiencing. 

A Brief History of Republican Court Packing

Conservatives have spent the last 50 years ruthlessly packing the courts with far-right partisans in an effort to warp our courts into an anti-democratic mouthpiece of the Republican party. Dark-money groups like the Federalist Society have created a pipeline of far-right partisans to fill seats on courts all across the country. They provided up-and-coming judges with resources and training, employment opportunities, and networking connections while Republicans pledged to only nominate judges backed by the groups.

To make matters worse, Senate Republicans have used unprecedented methods of obstruction to prevent Democratic presidents from filling vacancies with horrifying success. During Barack Obama’s presidency, Mitch McConnell blocked nearly all of Obama’s judicial nominees, including Merrick Garland for the Supreme Court, for no other reason than that they were nominated by a Democrat. McConnell and his Republican cronies have been richly rewarded for keeping these seats vacant. 

While the conservative takeover of the courts has been ongoing for decades, Donald Trump was particularly successful. During his presidency, he confirmed three Supreme Court justices and over 200 federal judges to the bench, a quarter of all active federal judges in the country. Many of those judges have been rated unqualified and are overwhelmingly younger white men—hardly representative of the country as a whole. Although Trump has mercifully left office, his judges will be on the bench for the rest of their lives, working to overturn any progressive legislation passed throughout the country.

Why Court Expansion?

There is no concrete or constitutional reason for there to be only 9 justices. When the Supreme Court first convened in 1790, there were just six justices. Since then, the number has fluctuated between 5 and 10 by statute, and by obstructionism—most recently in 2016, when Mitch McConnell effectively reduced the number of justices to 8 when he refused to grant a hearing or a vote for then-President Obama’s nominee to the bench, Merrick Garland. The three conservatice justices that Donald Trump nominated, who now make up a 6-3 conservative majority, represent an urgent threat not just to progressive legislation, but to our democracy. Urgent threats require urgent solutions. In this case, that means we need to add seats to the Supreme Court.

Other Reforms We Support

While we believe the Supreme Court expansion is the most effective and important reform we can pursue, we also support the following reforms. Altogether, these four proposals can all be accomplished through simple legislation and make up the four pillars of our court reform agenda.

1. Expand the lower federal courts. Most federal cases are decided in the lower district and appellate courts -- but those courts are dramatically out of balance, too. Because of Republicans’ wholesale obstruction of Obama’s judicial nominees, Trump was allowed to stack the courts with far-right, unqualified judges, 85% of them white, and 76% of them male. There is a long history of expanding the federal judiciary both to address the backlog of cases, and to address the lack of diversity on the federal bench. In fact, Congress added 152 seats in 1978 for those reasons. We are facing those exact problems today, which is why a significant expansion of the lower federal courts is critical.
2. Term limits for Supreme Court justices. The Supreme Court in particular has become a victim of extreme partisanship, largely because there are so few vacancies, and those vacancies occur unpredictably. Senators on both sides of the aisle know how critical the ideological makeup of the court is, so every vacancy is treated like an all-out war. The nomination process could be depoliticized by term limiting justices, ensuring that every president would get at least two Supreme Court picks per term. However, we do not believe term limits should be pursued without expansion.
3. Improved ethics and transparency requirements for Supreme Court justices. Unlike all other federal judges, Supreme Court justices are not required to follow a code of ethics. Any comprehensive court reform bill must include a Supreme Court code of ethics, improved disclosure requirements for justices, and a mechanism for recusal in the event of conflicts of interest.