Court Packing Is The Only Option

It's going to get worse until Democrats get serious about expanding the court

The Unionist-dominated Supreme Court of 1867 was the result of Lincoln and Republicans in Congress overhauling the federal judiciary in the 1860s to break “the last stronghold of Southern power”

In 2019, a group of economists released a study comparing mortality rates between states that expanded Medicaid and those that didn’t. The researchers concluded that about 15,600 people died because the state they lived in chose to refuse federal funds to expand Medicaid. That states had the option to do this in the first place was the result of a Supreme Court decision in 2012 striking down a key part of the Affordable Care Act. In other words, five unelected judges made a policy change that killed enough people to fill a large college basketball arena. 

This is no way to govern a modern society. Nor is it the only recent instance of conservative justices overruling the will of a majority of Americans to disastrous effects. To name just a few particularly egregious examples in addition to overturning Roe, in the past decade alone the Supreme Court has made it easier for states to enact discriminatory barriers to voting, undermined the power of public sector labor unions, ruled that border patrol agents can pretty much do whatever they want to you, upheld a ban on Muslim immigrants, ruled that your employer can limit your access to birth control, opened the door to overruling pretty much any gun safety law, gutted Miranda rights, and legalized corruption through the campaign finance system. 

What these rulings have in common is that they uphold and legitimize rule by a reactionary minority of ideological conservatives. The right correctly realized that the Supreme Court is the ultimate backstop for their agenda. If nothing else, controlling the court gives them the power to stand athwart history and actually stop it. As long as they control a majority on the Supreme Court, conservatives can overturn any law, uphold any policy, and legitimate any decision that maintains the social and economic hierarchy putting the leaders of the conservative movement at the top. The only way around this is to end their control of the Supreme Court. Waiting decades for justices to die is not a viable solution. Expanding the court is the only option. 

The conservative justices have shown that they do not care how old a statute is, how long a Supreme Court precedent has stood, how many people their decision would hurt, or whether their decision is popular with the American public. They don’t care that their decisions contradict what they said in their confirmation hearings. They don’t care that ruling in favor of states’ rights to restrict abortion, but ruling against states’ rights to restrict guns looks hypocritical. They don’t care that there is no basis for their decisions other than the nonsensical rules they make up. They understand - better than most elected Democrats do - that they were nominated to fulfill a political agenda, not call balls and strikes. How they justify doing so is largely irrelevant (which is why it’s left up to them to decide in the first place), so long as they vote the right way. 

What the conservative justices also understand is that they are accountable to no one. There is no protest, no single election, no poll, and no expression of public outrage that would affect their decision making. The only thing that will stop future rulings that roll back Americans’ rights is to take away conservatives’ power to do so. Expanding the Supreme Court is the only option. 

To accept that conservatives on the Supreme Court can continue making policy is to accept that the Republican Party, which consistently loses the national popular vote, should control an arm of the federal government that allows them to veto any law they see fit. This is an unjust political arrangement.

What’s most disturbing is that the leadership of the Democratic Party seems to have accepted it as legitimate. As Jamelle Bouie has written, the sclerotic leadership at the top of the party is wedded to the false notion that American society is perpetually on a path of self-improvement, believing that things will inevitably get better, even when the evidence is clear they are getting worse. Not only is this wrong, it has instilled an insidious unwillingness to act in the face of urgent crises.¹ If the moral arc of the universe bends towards justice, after all, why interfere?  

A Democratic Party that does not try to dilute the power of conservatives on the Supreme Court is one that is doomed to see its policy achievements nullified by a panel of unelected Fox News addicts. The project of convincing a majority of the electorate that adding more justices to the Supreme Court is not only justified, but must be a priority for leaders of the other two branches of government, will be a long and arduous process. But the Democratic Party must take it up. Doing nothing - either out of fear Republicans will respond in kind or a misplaced faith in the integrity of the Supreme Court - only serves to prolong a destructive status quo². The conditions are better than ever for this movement to succeed. Confidence in the Supreme Court is at an all time low. Three out of four Americans no longer have faith in the institution. And conservatives have made it clear that they’re only getting started.  

Contrary to what Democratic Party leaders think, the past 234 years of American politics have not been about fulfilling the principles outlined in the constitution, but have instead been a fight against its undemocratic structures. Just as Americans previously fought to democratize our institutions with direct election of Senators and expanded suffrage rights, so should they fight against a Supreme Court designed to uphold the political agenda of an authoritarian minority. It’s time for the Democratic Party to take up this fight en masse. Expanding the Supreme Court is the only option.

1.  And inspired some truly strange behavior

2.  It’s worth noting that the current nine justice iteration of the Supreme Court was determined by nothing more than an act of Congress. The size of the court has grown before, proposals to expand it are nothing new, and compared to, say, abolishing the Senate, expanding the Supreme Court is procedurally quite simple.