Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.
sarah (Sarah Frostenson, politics editor): With unified control of the White House and Congress, Democrats are pushing a number of sweeping legislative priorities, from an expansive voting-reform bill to weakening the filibuster to now possibly adding (or at least studying the possibility of adding) more justices to the Supreme Court.
What it means when Democrats talk about packing the Supreme Court
This raises a number of questions about the Democrats’ ambitious agenda, including:
- Is it good for democracy?
- Is it good for Democrats?
- Does it stand any chance of happening?
Let’s start with the commission Biden has created to study adding seats to the Supreme Court or setting term limits for justices. Is that good for democracy?
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lee.drutman (Lee Drutman, senior fellow at New America and FiveThirtyEight contributor): The Supreme Court has a growing legitimacy problem, which it’s had for a few years now. Trust in the court has been waning, too. The easiest solution is for the court to stop being the arbiter of thorny democracy and culture-war issues, but to do that, you have to fix the deeper problems of hyper-partisanship.
At the very least, the court should not be a deeply anti-majoritarian institution. (There is a 6-3 conservative majority on the court, even though Republicans have only won the popular vote for the president once in the last eight elections and have represented a majority of Americans in the Senate just once in the last 40 years.)
Some alternative arrangement of the court, then, would be better for the health of our democracy. Term limits make a lot of sense, but they’re not going to do a ton on their own, especially in the near term. That said, I don’t see “packing” as a productive solution. It only further delegitimizes the court.
nrakich (Nathaniel Rakich, elections analyst): I’m not sure I agree, Lee, that the court shouldn’t be counter-majoritarian. I’ve been working with FiveThirtyEight’s Laura Bronner on an article about the inherent biases in our political system, and one of the things I’ve learned is that the founders specifically tried to insulate several institutions, including the Supreme Court, from public opinion by making them counter-majoritarian, or (to use a less fancy term) minority-protecting. So the problem isn’t necessarily that Republicans control the Supreme Court despite the results of the last election; that’s a feature, not a bug. Rather, the problem is that Republicans have an unfair electoral (or appointed) advantage in pretty much every institution in our government right now.
While I see the argument that court packing would help to alleviate this balance somewhat, I ultimately think it’s bad for democracy. Adding more justices to the Supreme Court would be a violation of democratic norms, which creates a slippery slope to democratic backsliding (sorry for the mixed metaphors!).
lee.drutman: I don’t think the founders imagined the very active role the courts have come to play in our democracy. I agree, though, that the escalating justice arms race is not a great way to resolve the current crisis.
The proposal I find most compelling is one put forth by law professors Daniel Epps and Ganesh Sitaraman. The system, which would mirror how the court of appeals currently works, would comprise a panel of nine justices, randomly selected from a full pool of associate judges, and then rotated out with another set of judges.
I like this because it adds an element of uncertainty. It also means advocacy litigation and case selection would be more likely to proceed on the merits and not on the expectation of what would appeal to particular judges, who now have way too much power.
perry (Perry Bacon Jr., senior writer): I am generally wary of the idea that a political party should change the makeup of courts simply because it does not like their rulings. But if the Republican Party is going to make it harder for non-Republicans to vote — the most fundamental right in a democracy — and the Supreme Court is made up of Republican-appointed justices who won’t address voting laws because they see themselves as on “Team Republican,” that’s a big problem and must be addressed.
We should emphasize — Biden’s commission is not just about adding justices. It is looking at court reform as a whole. And judicial reforms that address, “How do we get the courts acting in pro-democracy ways?” are important.
sarah: And even though the Supreme Court would never admit this, it isn’t immune to public opinion — as FiveThirtyEight’s Amelia Thomson-DeVeaux wrote last year. Many law professors told us that all the talk of court packing and term limits for judges may have even encouraged the justices to not deviate too much from the mainstream in their decisions. That way, they could maintain their reputation as nonpartisan actors and perhaps secure some wiggle room for unpopular decisions in the future.
lee.drutman: The justices are certainly concerned with the legitimacy of the court, but if we’re in a moment in which the rules are different, the stakes feel higher, and the court is losing legitimacy … the conservative justices could decide that they are on the right side, legitimacy be damned.
sarah: OK, so is the idea to reform the courts by adding more justices good for democracy? I’m sensing a no, but some agreement that term limits would be good?
lee.drutman: I’d say term limits: good for democracy. Court packing: not so good. The rotating associate justices solution: very good.
sarah: So what about the politics of actually adding more seats to the court? Is that good for Democrats? Nathaniel started to get at this earlier, but it seems as if it would be good in the short term, but inevitably bad in the long term, right?
nrakich: Given how Republicans currently dominate the federal judiciary, court packing would undeniably help Democrats in the short term by making the court likelier to side with them and their policies. But in the long term, if Republicans retaliate by doing some court packing of their own, maybe not so much.
lee.drutman: There’d be a tremendous backlash to expanding the Supreme Court that would hurt Democrats in the short term. But in the long term, who knows?
sarah: Why do you express more long-term doubt, Lee?
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lee.drutman: Well, things are always more unpredictable in the long term. There’s the possibility of the arms race escalation that Nathaniel raised. But there’s also the possibility that we get some kind of political realignment or other change in our democracy that reshapes the current partisan conflict.
sarah: So I initially asked about the politics of expanding the number of justices and whether that was good for Democrats. Let’s say that Democrats focused more on term limits, which we said was better for democracy. Would that be better politically for them?
lee.drutman: Yes, it’s less controversial, and there are plenty of conservatives on the record supporting it over many years.
sarah: Now the kicker — which I’m guessing might have a familiar refrain by the end of this chat — what’s the likelihood that the makeup of the Supreme Court is altered, either via term limits or more justices?
perry: There is a real court-packing community and movement. But almost none of the people in that sphere are on this commission. So this group is likely to push fairly incremental ideas — if it pushes anything at all. In other words, court reform is dead, at least for now.
Consider, too, that Sen. Joe Manchin won’t support getting rid of the filibuster for fairly non-controversial things, like background checks on gun purchases. So he definitely wouldn’t support changing the filibuster to add justices to the Supreme Court, and my guess is he would oppose term limits, too.
Also, Biden has never really been into court reform in the first place, so that’s another reason it’s probably not going anywhere.
lee.drutman: It’s possible that the court renders a series of decisions that are so politically unpopular on the left that Biden gets pushed into doing something. But this seems unlikely. The most likely scenario is that the court tries to avoid super-controversial decisions that would undermine its legitimacy, and conservatives on the bench make more incremental rulings.
sarah: The fact that the commission isn’t expected to issue a set of recommendations surprised me. What’s the point of the study, then?
lee.drutman: The point is to see if there’s something that esteemed experts across the political spectrum could agree to act on. Maybe there is, but it’s more likely there’s not.
perry: Biden is following through on a campaign promise to create this commission. The issue is that when he made this promise, it looked like he might win 400 electoral votes and that Democrats would have 240 House seats and 53 Senate seats. But Democrats didn’t have that kind of resounding victory. If Democrats had won by large margins and it seemed like the Supreme Court was the only barrier to the country moving leftward, I think court reform has more momentum.
nrakich: I told Amelia Thomson-DeVeaux, FiveThirtyEight’s legal reporter who is currently out on maternity leave (hi Amelia!), that I was doing this chat, and she also pointed out that the court-packing debate largely ignores the fact that lower-level courts are also heavily skewed toward Republicans now.
So I wonder if expanding lower-level courts might be a more realistic reform, in that it would create less backlash.
lee.drutman: I agree that we focus too heavily on the Supreme Court because it is the most visible court. But lower courts are really important, too. That’s something Senate Minority Leader Mitch McConnell understood well when Donald Trump was president.
perry: Adding more district/court judgeships seems like a more plausible reform that the commission might propose, but it will also not likely become law.
sarah: OK, let’s talk about the filibuster next. As Perry hinted at, it seems especially unlikely that Democrats will reform this given Manchin’s position on it (he recently wrote an op-ed saying he won’t do anything to change the filibuster). But that hasn’t stopped Democrats from talking about wanting to get rid of it or seriously weaken it, in particular as it pertains to passing their sweeping voting-reform legislation.
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There is a debate, though, on whether the filibuster is good for democracy. Proponents, like Manchin, argue it’s important for protecting the rights of the party not in power. But opponents of the filibuster can easily point to its racist past, including how it’s been used to thwart civil-rights legislation. So, where do we land? Is the filibuster, on net, good for democracy? Or bad?
lee.drutman: That’s an easy one. As currently used, the filibuster is bad for the health of democracy. I’d go as far as to say it’s very bad, as it creates an opportunity for the opposing party to shut everything down.
There’s no democratic principle that requires more than a simple majority to pass ordinary legislation, either.
perry: I tend to think that the majority party should have the chance to pass its agenda and let the voters determine if they like that agenda, as opposed to endless gridlock.
The filibuster didn’t save the Affordable Care Act in 2017 — the public opposed those changes, and so Republican senators weren’t willing to repeal Obamacare, even though they had the option of using budget reconciliation to do so. Both parties just create workarounds on the filibuster whenever they really want something done.
It’s safe to assume, then, that Manchin doesn’t really care that much about the stuff that Democrats can only pass by gutting the filibuster, but he would feel differently about the filibuster if it were for stuff he cared about. Sen. Susan Collins, on the other hand, is probably fine with the filibuster because she probably doesn’t support the more right-wing bills that the GOP would push if there were no filibuster.
nrakich: Yeah, while I think it’s a good instinct to protect the minority party, the filibuster clearly goes too far. Sixty votes is a near-impossible threshold to reach in this era of polarization, which means policy just doesn’t get made, and that can lead to discontent that ultimately destabilizes democracy.
I think Perry raises a good point that the majority party is actually quite proactive about reining itself in, as you see with the hesitance of Manchin now, or Collins back when Republicans had power.
They are afraid of public opinion — probably more than they need to be, as some Democrats’ recent votes against the popular $15 minimum wage show.
sarah: What about the argument that if the threshold of votes needed was lowered to a simple majority, that you’d end up in this yo-yo situation, with each party pushing through its agenda when in power?
Wouldn’t that create a lot of 180s on policy? Or, if I’m understanding you all correctly, you’re saying that argument is flawed to start with because there are already checks in place to prevent this (namely, public opinion and parties not wanting to do unpopular things).
nrakich: That, Sarah, but also, aren’t 180s on policy fine if that’s what the voters want? Maybe they elected an all-Democratic government but that government enacted a very far-left policy, and the voters elect a Republican government in the next election specifically to repeal that policy.
lee.drutman: And right now, the filibuster pushes policymaking to the executive branch, which creates far more 180s in policy.
nrakich: That’s a great point, too, Lee.
perry: If the voters elect a different party to control the government, we should have shifts in policy. The parties support radically different things. It was weird in 2017, when a party that had said Obamacare was so terrible for almost a decade didn’t really seem prepared to repeal it — almost as if the repeal push wasn’t that serious, and they expected to be able to blame it all on the rules.
lee.drutman: That’s an important point, Perry, about Republicans not having a plan. And the filibuster gives them an excuse not to have a plan, because they can say they don’t have 60 votes.
A 51-vote threshold, on the other hand, forces parties to actually have plans they intend to follow through on. This seems like a good thing to me.
sarah: On that note, then … filibuster reform would be good for Democrats, yes? (Good for Republicans, later down the line, too?)
lee.drutman: Well, filibuster reform doesn’t happen in a vacuum. If Democrats get rid of the filibuster, it means they’ll be passing their big voting-reform bill and making Washington, D.C., a state.
So, yes, that would be very good for Democrats.
nrakich: Because of the rural bias of the Senate, it’s virtually unimaginable that Democrats will be able to win 60 seats in the foreseeable future, so enacting the full Democratic agenda requires them getting rid of the filibuster.
Republicans are in a better spot, though. They could someday win 60 Senate seats, in which case the filibuster wouldn’t matter as much to them. But abolishing the filibuster would also help them much of the time.
lee.drutman: Republicans would have to rethink their entire electoral and policy strategy (they couldn’t just say no anymore). It would also bring more divisions within the party to the surface.
Ultimately, I think this would be very good for democracy. And probably good for Republicans in the longer run, even if they don’t realize it now.
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perry: So in terms of passing their preferred policies, filibuster reform would be good for Democrats. But I think it would be bad for Republicans, because I don’t think Republicans have as many policies that they want to pass.
As the pro-government party, the Democrats want to pass more bills. And there is a theory that the Democrats passing a bunch of popular policies on economic issues, like raising the minimum wage, will help them electorally. But I am not so sure that voters vote in such pragmatic, rational terms. I think there is a case where Democrats pass a bunch of stuff, voters like some of those ideas, but think it was too much overall, and back the GOP in the midterms as a check on the Democrats.
So while getting rid of the filibuster allows Democrats to pass their preferred policies, I am not sure getting those policies passed is all that useful electorally. Their voting-reform bills are somewhat useful in terms of making it harder for Republicans to shape the electoral rules. But those two bills are not necessarily going to prevent a midterm loss for the Democrats.
sarah: Does filibuster reform stand any chance of happening? Say, Manchin relents on his stance. Won’t Democrats — given what’s at stake for them politically — do everything they can to push for gutting the filibuster?
nrakich: That’s a big if, Sarah. It really doesn’t sound like Manchin will budge. But even if he does, other moderate Democrats, like Sen. Kyrsten Sinema, might still stand in the way.
That said, some kind of reform short of abolishment — like bringing back the talking filibuster — seems possible.
perry: I have been surprised by how strong Manchin’s stance is and how little the party has really fought him. It makes me think that there are three to five Democrats who agree with him in private. I think the filibuster debate might be over — with no real changes made.
lee.drutman: Manchin does seem pretty dug in and seems to view his legacy as bringing back some kind of lost bipartisanship. I’m not sure when he’ll realize that’s not going to happen.
sarah: If we think filibuster reform won’t gain more traction in part because of a number of resistant Democrats, do we have a good explanation as to why? Is it really just because those politicians equate the filibuster with bipartisanship?
perry: I think there is still some disagreement on these issues in a policy sense. Manchin is a centrist — so the filibuster allows him to block the left’s goals. I don’t think Manchin really wants a more Democratic-leaning Supreme Court.
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lee.drutman: I think it’s a small-c conservative instinct. Eliminating the filibuster is, after all, a major change in how the Senate does business, and it’s basically an acknowledgment that the Senate will work differently going forward. And if you’re a more moderate-to-conservative Democrat, you will be under a lot more pressure to get on board with the full Democratic agenda.
sarah: Let’s talk about the Democrats’ massive voting-reform bill that has already been passed in the House, although it’s unclear if/when it will be taken up in the Senate. Is it good for democracy?
lee.drutman: Also an easy one. Yes, it sets up a bunch of baseline rules for making voting more fair. That means it would be more difficult for state lawmakers to restrict voting, as we’re currently seeing play out across the U.S. It would also set rules for what constitutes illegal partisan gerrymandering. There would also be limits on “dark money” or donations made in secret by big political action committees.
nrakich: Agreed, Lee. All these things make the democratic process more transparent and easier for people to participate in. (The House’s bill would implement at least 15 days of early voting for federal elections, ban states from restricting access to absentee voting in federal elections and lower the barriers to registering to vote, such as by allowing people to register on Election Day in federal elections.)
sarah: And is this good for Democrats politically? Or is that a little harder to answer, as making voting easier doesn’t necessarily hold an advantage for either party?
nrakich: I don’t think it’s harder to answer — the bill is good for Democrats — but I think we need to be nuanced about it. A lot of the most-discussed provisions of H.R. 1 probably wouldn’t have a partisan effect (the expansion of no-excuse absentee voting and early voting, for instance). But the attempts to make redistricting fairer would be a major boon to Democrats, given that Republicans are primed to draw more than 2.5 times as many congressional districts as Democrats this decade (188 to 73).
lee.drutman: Nathaniel’s right — the voting provisions don’t have a clear partisan tilt. The 2020 presidential election was a very high turnout election. It’s unclear if that will be true moving forward.
perry: It’s good for Democrats in that they won’t have to spend as much time navigating voting laws. Think of the time people in Georgia will have to spend dealing with changes to their voting laws — set rules would help Democrats in states where they are more reliant on get-out-the-vote operations, as is the case in Georgia.
sarah: Do we think Democrats will be able to pass their voting-reform package?
perry: I can see some version of a trimmed-down voting-rights bill being given some kind of green light by Manchin.
nrakich: I think it’s unlikely to pass, but I think it has a better chance than the two other things we talked about. Democrats seem really invested in passing voting-reform legislation.
So I could see them pulling some creative legislative maneuvers, like creating a voting-rights exemption to the filibuster, to make it happen.
perry: It is the most plausible thing that we have discussed here. I could see Manchin and Sinema allowing a small carveout for some kind of voting-rights bill.
lee.drutman: I agree that there is a real push at all levels of the Democratic Party to pass this. As Democrats begin to assess the hard realities of the 2022 midterms, and Republican state-level efforts to restrict the vote and redraw political maps build, the pressure on Democrats to pass something will mount.
There’s a real question of whether it will be too late — or how it will work — as many of the changes, particularly as they pertain to redistricting, need time to go into effect before the 2022 elections. Democrats are up against the clock.