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Without any fundamental reform, the conservative legal movement is likely to control the Supreme Court until 2065. That’s the conclusion of a newly updated paper on the Court’s makeup. The paper focuses specifically on the long-term impact of court-packing proposals, the increasingly popular reform proposal that liberals champion and conservatives… don’t seem too worried about.
Now see, Mitch McConnell’s lack of worry should give court expanders pause, but somehow it never seems to. So this paper went ahead and crunched the numbers and the results shed some light on why Mitch McConnell seems conspicuously unconcerned.
First off, the authors (Chicago’s Adam Chilton, Wash U.’s Daniel Epps and Kyle Rozem, and Harvard School of Government professor Maya Sen) set the stage noting that the trifecta of Ruth Bader Ginsburg refusing to retire, Mitch McConnell breaching his constitutional obligations without consequence in refusing to even attempt to “advise and consent” on the Garland nomination citing an election within the year, and McConnell’s corresponding reversal to confirm Amy Coney Barrett within weeks of an election moved the next time Democrats are likely to control the majority of the Supreme Court from 2029 to 2065.
Has anyone’s nickname undergone as radical a transformation without actually changing as Notorious RBG? It’s been a five-year roller coaster from being “notorious” as a feminist icon to “notorious” as the narcissistic figure whose refusal to retire destroyed reproductive rights for at least a generation.
Regardless of partisanship, the 2065 date is constitutionally disturbing. Democrats have won more support in all but one election since 1988, yet the branch with functional veto power over the entire government boasts a Republican supermajority. The Framers certainly envisioned a much weaker, more apolitical Court, but to the extent they harbored any inkling of the risk of a powerful judiciary, they wrote the text of the Constitution with the expectation that the nomination process would produce a Court that slightly lagged the outcome of political contests.
Unfortunately, actuarial tables and strategic retirements frustrate that intent.
Five of the nine members of the Supreme Court reached their perches courtesy of presidents who didn’t enter office with the support of a majority of American voters. At least Roberts and Alito received their commissions in W.’s second term where the power of incumbency afforded him a majority of the vote. Still, given their ages and the circumstances that brought them to the job, the high likelihood that most of this cohort of justices hold on to retire during one of the increasingly rare GOP administrations only deadhand extends this minoritarian ideological hold.
This is why some well-meaning folks argued that Biden should have taken his congressional majorities (now diluted by one chamber) and added justices to get things back on track and protect the rights being trampled by this Court.
It’s certainly constitutional. It’s also a pretty bad idea as it turns out.
The paper runs the numbers on the scenario where the “Initiating Party” — in this case, the Democrats — kick off court expansion:
We then simulate the future of the Court in a counterfactual where the Initiating Party initiates court-packing. To do so, we assume that the Initiating Party adds four seats the Court to achieve a 7-6 majority and that both parties then court-pack if it is able to under similar political conditions as the initial court-pack. These simulations suggest that, in a world with court-packing, the Initiating Party is likely to control the Court for 55 years out of the next 100, and the size of the Court would grow to 37 seats after 100 years. However, there is considerable variation in what the Court would look like across the simulations. For example, in 90 percent of our simulations, the Initiating Party controls a majority of the Court between 36 and 73 of the next 100 years, and the size of the Court would grow to between 23 and 61 seats after 100 years.
Sixty-one justices…
Sure. Why have nine unelected aristocrats operating outside the bounds of any ethical code when we could have 50 or more? Imagine the clerking opportunities!
Look, on its surface, 55 years of control is better than 29 years of control. Dealing with 23 to 61 justices introduces even more deadhand control via strategic retirements keeping seats “claimed” for decades, but that doesn’t matter because a new administration could always just invent more! So there’s a decent chance fewer justices strategically retire because if they die at an inopportune moment, the next packing cycle will fix it.
But this overlooks the fact that the parties have very different “victory conditions” when it comes to the Supreme Court. One philosophy is “winning” when it successfully greases the wheels for polluting businesses or juices profits for gun manufacturers or disenfranchises minority and women voters. It’s comfortable being in the minority for stretches as long as it gets its kicks in every moment it’s in power. The other worldview doesn’t have that luxury because every moment it’s out of power someone’s rights are left unprotected. And given the importance of a functioning regulatory state to Democratic aims, those 55 years need to have big chunks strung together contiguously, because pinballing environmental laws every four years is little better than no regulation at all.
That’s why Mitch McConnell doesn’t much care if Democrats opt to expand the Court because he — and his successors — can bide time and catch the next opportunity. They waited over 200 years to pretend the Second Amendment means an individual right to own a gun, they can spend a couple years in the wilderness before bringing back child labor.
That’s why term limits for active panel Supreme Court justices — with justices cycling off to a form of “senior status” after 18 years — remains the best reform option. It receives broad-based popular support and has at least got a shot at bipartisan passage. The root of the Supreme Court’s credibility crisis is the exploitation of life-tenured membership to forge decades-in-the-making deadhand influence through strategic retirement. Just take retirement out of the hands of the justices. Control of the court reflects the will of the last four national elections not whether or not the guy placed on the Court nine elections ago is still in good health while more recent colleagues have moved on.
And maybe court expansion plays a role in that after all. Maybe it’s the hardline opening negotiation position that whittles down to a term limits agreement. Or the sword dangled over the Court if it considers striking down such limits. Or both.
But court expansion is just adding life-tenured chairs to the Titanic. Serving for life was meant to shield judges from political influence and intimidation, not enable them to become unaccountable political actors. Until the root of that disconnect is addressed, the Court’s future is just varying flavors of dystopia.
The Endgame of Court-Packing [SSRN]
Earlier: Democrats Pitch Supreme Court Expansion — A Bad Idea, But Maybe A Good Strategy?
Whaddya Know? A Majority Of Americans Support Expanding The Supreme Court
Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier
Supreme Court Term Limits Bill Should Have Broad Bipartisan Support So It Probably Won’t
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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