The Case for Court Packing

The issue is becoming a litmus test for the Democratic Party. Aaron Belkin, founder of Pack the Courts, explains why.

Supreme Court justices
A group portrait of the Supreme Court justices in the East Conference Room of the Supreme Court on June 1, 2017. Front row from left: Supreme Court Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony Kennedy, Chief Justice John G. Roberts, Associate Justice Clarence Thomas, and Associate Justice Stephen Breyer. Back row from left: Associate Justice Elena Kagan, Associate Justice Samuel Alito, Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. Photo illustration by Slate. Photos by Alex Wong/Getty Images and Janifest/iStock/Getty Images Plus.

On the March 30 episode of Slate’s Supreme Court podcast, Amicus, Dahlia Lithwick spoke with Aaron Belkin of advocacy group Pack the Courts about why packing the courts is becoming a serious topic in the Democratic presidential race.

A transcript of their discussion, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: Court packing is becoming a rather unexpected litmus test in the Democratic primary. This is an idea that would not have dared speak its own name in any earlier election that I can think of, and is now resoundingly on the table. And that’s in no small part because, by any construction of constitutional norms or rules, Neil Gorsuch now sits in a seat at the Supreme Court that was actually stolen from Merrick Garland. For years, Democrats that I know tended mostly to just stew about that, but more and more they’re talking about taking some kind of action. Aaron Belkin is a scholar and advocate who designed and implemented much of the public education campaign responsible for helping end the military’s “don’t ask, don’t tell” policy in 2011. Then he launched an advocacy group called Pack the Courts this past October. Now Aaron, I want to be clear that you come to this as you came to “don’t ask, don’t tell” and the trans ban—as a political scientist and advocate, not as a constitutional lawyer, right?

Aaron Belkin: Yes. I am a political science professor, but my narrow disciplinary background is military studies and international security. I’m not a lawyer and I’m not a court expert. So I am coming at this sideways.

So, what was the original idea behind Pack the Courts? And most notably calling it that, naming this thing after the thing that almost tanked FDR. I mean, that’s a bold move, right?

The idea is that you really can’t have a democracy when courts are stolen. And it’s not just that the Supreme Court was stolen, but the Republicans arguably blocked more lower court appointees in the last two years of the Obama administration than had been blocked in the history of the United States. And if Harry Reid had not gotten rid of the judicial filibuster for lower court appointees, then the total number of open seats that Trump would have had to fill when he came into office would have been much, much greater. And so the Republicans have been playing a ruthless game of judicial theft—well, not a game, a ruthless strategy of judicial theft—and that compromises democracy.

But also, the reason why it’s so important to talk about court packing—and I think this is what the candidates are starting to get—is that the progressive agenda is dead on arrival because of the Supreme Court. So if you’re talking about Medicare for All, or the Green New Deal, or banning voter suppression, or banning dirt money in politics, or gerrymandering, and you don’t have a plan to protect your agenda from the Supreme Court, then you really can’t be taken seriously as a candidate, because this court is so radical that it will not allow Congress to restore democracy and fix the problems that are plaguing this country. So that was the inspiration for the project.

Now, there’s a different question about why we’re calling the project Pack the Courts. The first reason for using the packing language is because it’s honest, the second is because people understand what it means, and the third and final reason is because we’re going to have to deal with the baggage of the FDR story in any case. So why not just deal with it honestly and head-on instead of trying to circumvent it? And the truth about FDR is that he arguably saved the New Deal by threatening to pack the courts. And so we’re not ashamed about what FDR tried to do, and we think historians have overlearned the lessons and have misconstrued that effort as a failure. So that’s why we’re referring to ourselves as Pack the Courts.

Can you talk a little bit more about that? Because I was going to ask you about that. We always say, oh my God, FDR almost tanked his presidency, but in fact he didn’t tank his presidency and he got the Supreme Court to blink, right? Isn’t that the story we should be telling?

Yeah. I mean, he certainly didn’t tank his presidency. He won two more presidential elections after saving the New Deal by threatening to pack the court. You know, I guess historians have different interpretations, but one pretty plausible interpretation of what happened is that by threatening to pack the court in a credible way, he moved the courts in a direction of really being open to the evidence and really to shy away from using crazy constitutional interpretations to tank the New Deal, and allowing him to save the economy and arguably save the republic. So yeah, we don’t see that as a failure at all.

I want to just do one tiny piece of constitutional housekeeping before we go any further, Aaron: There is nothing in the Constitution that says that we have nine justices. There’s nothing that even fixes the number of justices. We have an act of Congress, the Judiciary Act of 1869, which actually set the number of justices at six. But all of this sort of fanciful notion that there is a constitutional mandate for nine justices and that is immutable, that’s all kind of mythmaking. Right? It’s not, in fact, true.

And I would argue it’s even in a proactive sense upside down, because the framers left it up to Congress as a check on the court to determine the makeup of the court. And the reason for that was because there had to be some check on an out-of-control court, and Congress is that check. And so, if you have a court that is out to subvert the very democratic basis of the country, as is the case today, it is not only allowable for Congress to step in—it is Congress’ job to step in and check the courts.

How did it come to be that something that was seemingly just fanciful and dream talk came to be one of the cornerstone issues early in the primary?

Given that the center of the party has been afraid to talk about the courts in the way they need to be talked about, candidates are realizing, “Hey, there’s an opportunity here to really explain to the voters that we are in a desperate situation and we need to have a strategy to rescue democracy.”

They’re saying, “I’m open to something. Everything’s on the table.” They’re not explicitly saying, “I think we should pack the court.” Right?

Well, this makes me a little sad and, frankly, a little upset that people in the party are trashing court packing and encouraging the candidates to endorse reform ideas that look good on paper but that have zero chance of working in practice. I would like to explain what I mean by that.
Laurence Tribe, maybe the most brilliant constitutional theorist in the country, is saying, Court packing is a really bad idea. Why don’t we talk about term limits instead?

Well, term limits look great on paper, but the chance of implementing term limits in practice is zero. It’s zero. And the reason it’s zero is because Congress would pass a law authorizing term limits and then there’d be a very long window of time between the passage of that law and the point at which the law would start to have a moderating effect on the court. And guess what would happen during that window? What would happen is the court would enjoin and then strike down the law. I mean, the five conservatives are not going to willingly hand over their power. It’s the same problem with the five-five-five proposal.

Go back and explain five-five-five. That’s where Republicans pick five, Dems pick five, and then those 10 justices agree on the others?

Yeah. Or you might have nine justices agree on the other six. So you’d have a court of 15 justices. Yeah. Ideally, five conservatives, five liberals, and five moderates, and then if the nine or 10 liberal and conservative justices cannot agree on the five moderates, then the court shuts down for a year. And I would argue that the stakes are so high now, they are so high—11 years left on the clock to deal with climate change, to avoid a planetary disaster, to say nothing of all the democracy emergencies we were talking about a few minutes ago. This is not the time to have an academic multiyear conversation about reform options that look good on paper but that have zero chance of working in practice. And so, if there was any lesson of the 2016 campaign, it was that you need to campaign on bold, clear ideas.

Court packing is the Medicare for All of judicial reform. It’s the best idea, it’s a clear idea, people understand it, they can rally around it, it works, it will give us a fighting chance to save democracy. It does have risks, although not risks that are any worse than other strategies, and I would argue, actually, less risk than other strategies. So that’s what we should be talking about as a party.

Can you give us the outlines of what perhaps the courts want to see as the sort of, at least the sketch of, what we should be looking at when we talk about packing the courts?

Yeah. With respect to the Supreme Court, we’re calling for the addition of four seats. And so, two of those seats to compensate for the theft of the open seat that President Barack Obama should have been allowed to fill, and two of the seats to compensate for Kennedy’s retirement, because to the extent that President Donald Trump did not obtain the presidency via legal and legitimate means, then arguably he should not be making lifetime appointments to the Supreme Court. And then with respect to the lower courts, we’re calling for the expansion of the district and appellate courts commensurate with the number of judges whom the Republicans prevented Obama from seating in the last two years of his presidency.

One of the reasons that a lot of constitutional scholars and thinkers balk at what you’re proposing is because they feel like, in the end of the day, it will demean and devalue the court itself. And that what you’re doing is turning the court into zero-sum political football for all time, and that, right or wrong, we like to think that the court transcends politics. What’s your response?

The size of the court has changed many times, and when it changed in the past, it was always associated with a flourishing of democracy, and with the subsequent enhanced legitimacy, enhanced legitimation of the court. And so the idea that packing the court is somehow inconsistent with the expansion of democracy, or with the flourishing of the court itself, is not right historically. I would argue, that having been said, what has trashed the court’s legitimacy is not the proposal to pack the courts. What has compromised the court’s legitimacy is a generation of ruthless politics, ruthless traditional politics on the part of Republicans to the point at which they have done things like issue the Bush v. Gore decision—which, you know, on the basis of nothing, handed the election to George Bush—and issue Shelby County—which, on the basis of extremely cynical reasons, prevents black people from voting.

The court is a partisan institution. The Kennedy court was an extremely partisan and conservative court, if you look at the data of its jurisprudence overall, and things are only getting worse, as Brett Kavanaugh was quite open about at his hearing, when he threatens to use his position on the bench to take vengeance against liberals.

So this fantasy that the court is somehow going to, you know, return to a nonpartisan branch is grossly disingenuous. That’s not a realistic understanding of where the court is now. Maybe it’s not a realistic understanding of where the court ever was, but the bottom line is that it’s not court packing that threatens to undermine the court’s legitimacy—it’s using the court as a partisan football in the way that the Republicans have been using it.

When we spoke last October, I asked you, how do you plan to get progressive voters to give a crap about the courts when they just don’t? They haven’t voted around the courts. They haven’t prioritized the courts. In 2016, with an open seat and three octogenarians on the Supreme Court, they didn’t care enough to vote around the court. How do you plan to message the very, very abstract, wonky notion that the federal courts are kind of a backstop of constitutional democracy when progressive voters just don’t vote about that?

I think the voters are changing. And I think part of that was what they saw in the Kavanaugh hearings. But I actually also think that court packing itself is the key to unlock that door, because part of the problem in helping progressive voters understand the stakes of the courts is that the progressive groups have never given the voters any solution that can be pursued to change the courts. I think what’s different now is that we really can show the voters that the Supreme Court has spent, I mean, most of American history, but certainly the last generation, attacking women, and workers, and people of color, and that there’s actually something you can do about that. So that’s part of the case.

And the other part of the case is that some of the presidential candidates are reporting that they expected to go to Iowa and New Hampshire and have voters ask them about health care and the environment. And that’s exactly what’s happening. So basically, every coffee shop they go into, people want to know about climate change and they want to know about health care. But what’s surprising some of the candidates, we hear, is that the voters also are asking them how they’re going to fix broken democratic institutions, and what they’re going to do about our broken democracy.

And so I think that—not just with respect to the courts, but more broadly about democracy and the robustness of the political system—the voters really get that we are in deep trouble, and they’re seeing the connection between Kavanaugh and the theft of the Garland seat, and the court, and the destruction of democracy, and also policy risks like climate change and health care access. And so today is a day when we can make that case in a way that was not possible in the past.