President Biden has put together a commission to examine the size of the Supreme Court. A bill was introduced in Congress to expand the Supreme Court from nine to thirteen justices. In response, a Republican congressman said the Democrats’ plan is to do as much harm to “our democracy” as possible. I wondered about his definition of democracy for, while the Supreme Court is an important American institution, it is one of our least democratic features.

The Supreme Court, of course, is not an elected body; the Justices are neither voted in nor answerable to “the people.” Since Justices may sit for thirty or more years, they make decisions for decades after the officials who appointed and confirmed them have left office. This can also be long after many  Americans were even eligible to vote for the president and senators who appointed and confirmed them. The Supreme Court is not a democratic body. Indeed, in finding validly enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views. We know that the backgrounds of possible Supreme Court nominees are analyzed to foretell their ruling on important issues.

If the Court was to be expanded, Biden would be expected by many to nominate people who would rule in a “liberal” fashion, which means that the Republicans will oppose any expansion of the Supreme Court. Unless changes are made to the anti-democratic filibuster rules, a larger Supreme Court is unlikely. Even so, that should not end considerations for reforming the process even if a larger Court resulted. The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy.

The Constitution does not define the number of Supreme Court Justices. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate often using long neglected doctrines and breathing new life into obscure clauses of the Constitution to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic that seemed inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad a light when its questionable constitutional interpretations became recognized as being the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court. Something like this passage from an email I have just received from a conservative institution will be repeated many times:

Political elites on the radical Left have officially taken the first step in their plot to overthrow the U.S. Supreme Court. With the Biden Administration’s recent announcement of their new Supreme Court “reform” commission, there’s no mistaking it any longer: the extreme Left set its sights on permanently turning our independent judiciary into a tool of raw political power. And now taking it even further, Democrats have filed a bill to add 4 seats to the U.S. Supreme Court. Let’s call it what it is: a coup.

Liberals, on the other hand, have seen the Republican denial of the Merrick Garland nomination and the subsequent approval of Amy Coney Barrett as exercises of raw political power. These moves are seen not as a coup, but as a means of transforming the judiciary into a more partisan institution. A Democratic congressional candidate in the last election, when asked about court packing, said what many others think:

Sure, let’s talk about packing the court. Let’s talk about how Republicans have won the popular vote only 1 of last 7 Presidential elections but have nominated 14 of last 19 SCOTUS picks. Let’s talk about how Mitch McConnell denied President Obama’s appointments of 110 Federal judges, and a SCOTUS appointment. Those 110 appointments were then appointed by President Trump with conservative judges, and the SCOTUS pick denied to Obama was given to Trump. And now, going back on their own rule to not appoint SCOTUS justices in an election year, the GOP wants to appoint a justice in an election year. You can’t accuse Democrats of a hypothetical event that never happened while ignoring the actual court packing done by Republicans.

It seems inevitable that those holding this latter view want to use present Democratic political power to balance the partisan Republican actions. Our country is harmed the more that Supreme Court rulings are seen not as neutral constitutional and statutory rulings but as merely the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. An expanded Court might bring us a more balanced Court now, but ultimately, just as the Republicans have damaged the Supreme Court by their actions, the Democrats may do the same in the name of balance. The functioning of our constitutional government is harmed if we all believe as Roy Cohn did when he said, “I don’t want to know what the law is, I want to know who the judge is.” The Republican actions foster that feeling, and actions to counterbalance them by expanding the Court can do the same.

(continued April 28)