Jurisprudence

Can Democrats Fight Back Against Conservatives’ Court Packing?

To do so, they’d need to start talking about it.

Russ Feingold gestures with both hands.
Then-Sen. Russ Feingold in Milwaukee in 2010. Darren Hauck/Getty Images

Conservatives have launched a targeted takeover in recent years of the nation’s courts using Mitch McConnell’s Senate and conservative jurisprudence juggernaut the Federal Society to successfully flip many key circuits—likely for decades to come. Is it too late for progressives to respond? On this week’s episode of Amicus, Dahlia Lithwick posed that and other questions to former Sen. Russ Feingold, who is the new president of the American Constitution Society, or ACS, the progressive answer to the Federalist Society. Read a portion of their conversation, which has been edited and condensed for clarity, below.

Dahlia Lithwick: We’ve seen a sea change in the courts. There’s this sense that it’s really all happening very quickly, and circuits are flipping, and they’re going to continue to flip. I wonder if, absent big structural reform, isn’t the damage already irreparable?

Russ Feingold: It’s a very depressing development, and it’s a huge challenge to see very young ideologues put on the court intentionally to try to lock down the courts for future generations. We’re at the bottom of the pit right now. There’s this momentary feeling that nothing’s going to change. But the one thing I am certain about the American people is: They tend to go back and forth. Although this is a very troubling time and the conservative right has taken maximum advantage of tilting our legal system, this will turn around.

Lithwick: Are you open to at least talking about court packing? Are you open to talking about things like term limits, or is it just best not to talk about any of this?

Feingold: I’ll tell you, I’m not just open to it, I’m going to talk about it right now. The ACS doesn’t take specific positions on issues like this, but it does try to play a lead role in trying to foster a conversation with experts across the country. Look, I’ll be honest, throughout most of my life I was horrified at the idea of term limits for Supreme Court justices or packing the court.

The right has always cited the attempted so-called court packing by Franklin Roosevelt as being some sort of outrageous thing. But what have they done? They have packed the courts, they have packed the 9th Circuit, they have packed the appeals courts with right-wing ideologues for the specific purpose of dominating those courts for the future. So we have to go back to the founding of the country. This has nothing to do with political party. We all know that the founders of this nation never anticipated that people would have a very reasonable expectation of living to 90 or 100 years old and that there would be a political movement in this country based on ideology and harsh partisanship to try to put 35- and 40-year-olds there to dominate the courts for 50 or 60 years. This could not have been anticipated, and it can’t be right.

So yes, I think ACS and others should have a real conversation on this. Should there be an 18-year limit on a Supreme Court justice? Should there be more justices? People seem to think that there’s always been nine justices, but that’s not true historically. I’m not advocating any one of these things, but clearly something is wrong when we have to worry about the health of elderly justices who are begged to stay on the court. This is wrong, and there has to be a solution.

Lithwick: I appreciate you being willing to engage on these issues because I have been disheartened watching all the primary debates and the utter failure to talk about any of these issues. The failure to discuss it doesn’t make it go away. It just means that when we hear the words court packing, we kind of freak out. So, I just want to ask you, maybe I’m wrong and you’re wrong and this is a smart strategy to just pretend that the courts don’t matter?

Feingold: In defense of the candidates, I understand their reticence to talk about this because in the past the idea of court packing has been something that the right has talked about because of their claim that the courts were too activist. I think there’s a reticence to open the door to a politicized way to attack the very structure of the court. Of course, you’re not hearing this from the right now because they have control. The problem is that this issue is fundamentally distorting our federal judiciary, allowing previous generations to completely dominate the world and the reality of future generations.

It is time for all of us to get over that reticence and to try to figure out a solution. So how do we do it? There should be a very serious conversation during the primaries, and then in the final debate between whoever the Republican nominee is and the Democratic nominee. This is an important time for the American people to see how critical the composition of the United States Supreme Court and the federal judiciary is to their daily lives.

The Declaration of Independence promises all Americans the opportunity to pursue happiness. You cannot effectively pursue happiness in a society where the legal system is tainted, where the average person can’t trust that the legal system is legitimate. That’s what’s at stake here.

Lithwick: There’s the asymmetrical warfare question: We’re bringing a butter knife to a gunfight. Do Democrats going forward need to abandon any illusion of adherence to the sort of norms and conventions of good government and of comity in order to even be competitive in the field anymore?

Feingold: You’ve raised the fundamental moral and political question: At what point and in what way does one respond to brutal tactics that break all the norms and all the traditions? The McConnell Senate and the Supreme Court and others have taken a view that they can just go forward, and that the Democrats will never respond. So what do we do? I don’t think we give up our principles. I don’t think we should use the same weapons as they do. But we have to think about how we respond to this.

I don’t think we should be in the position of completely disregarding the norms that have helped make the United States Senate confirmation process work. Having said that, something has to be done about the fact that the United States Supreme Court was stolen under President Obama by the United States Senate. The idea that somehow Merrick Garland wasn’t even considered when Obama had earned the right to have that nomination considered and probably confirmed is something that has to be dealt with. There has to be some kind of recompense here. There has to be some kind of recognition that the court was stolen. There has to be something done to even the balance. Perhaps in the Senate rules that will mean going forward that this kind of approach can’t be used anymore. Progressives simply cannot stand back and let the conservatives do this in the future.

Listen to this episode of Amicus below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.