In the calm before 2020, FiveThirtyEight is taking a look at the ideas and people who are nudging the country’s rapidly changing political conversation in one direction or the other. We’re calling these people and ideas “nudgers.” (Creative, we know.) Our first nudger? The idea that Democrats should pack the Supreme Court.
For many decades, Americans regarded the Supreme Court as a place largely above the dirty business of politics. The elevated status of the justices has always reminded me a bit of ancient Rome’s Vestal Virgins, a small group of young women from patrician backgrounds who, for a tenure of 30 years, tended to the sacred fire of Rome. They existed as living symbols of aspirational piety and duty who were buried alive if they fell down on their main job of maidenhood. If the American imagination has anything close to a cadre of cloistered cultists who stoke the eternal flame of freedom while living apart from the society they serve, it is the Supreme Court’s nine justices. (One of whom says he remained a virgin in high school and “for many years after.”)
The Virgins, though, had term limits. Supreme Court justices do not. And these days, many liberals feel the the court doesn’t live above the partisan fray. Currently, only 38 percent of Democrats approve of the Supreme Court, compared to 72 percent of Republicans. Senate Majority Leader Mitch McConnell’s stonewalling of President Obama’s court nominee, Merrick Garland, was the beginning of a drama that spurred Democrats’ latest disillusionment with the Supreme Court. President Trump’s appointment of two young — well, more like “young” — conservative judges, Neil Gorsuch and Brett Kavanaugh, seems to have unleashed an urgent strain of thought in some liberal circles: The court is broken and it needs fixing.
The solution? For some, it’s court-packing.
You’ve likely heard of the concept in history books, referring to a time back in the 1930s when President Franklin Roosevelt was fed up with the Supreme Court’s continual rejection of some elements of his New Deal plan. To get around the impasse, he proposed the addition of up to six new justices to the court in an effort to shift the ideological balance to the more liberal end of the spectrum.
Roosevelt failed to pack the highest court, but his novel little idea has attracted renewed interest in the Trump era. Political scientist David Faris wrote a book, published this spring, called “It’s Time To Fight Dirty,” a kind of highbrow manual for ratfucking one’s way to institutional change. Faris told me the idea for the book came in the wake of the 2016 election, when he was filled with rage. “The whole idea was born out of bleakness,” he said. “It unleashed some creativity.”
The book is full of strategies Democrats could use to regain power, like making Washington, D.C., and Puerto Rico states and expanding membership in the House of Representatives (a topic recently taken up by the editorial board of The New York Times). But one chapter in which Faris outlines a plan to pack the Supreme Court and instate term limits for the justices has gotten perhaps the most attention. Faris credits an organization called Fix The Court for coming up with some of the specifics of the plan he outlines in the book: a constitutional amendment revoking lifetime tenure for the federal judiciary, a law that allows the president to appoint a justice in the first and third year of his term of office and that imposes 18-year term limits on justices, and a restructuring that increases the number of justices on the Supreme Court to 11 or 13, “depending on how many justices President Trump ends up appointing.”
Over the past few months, liberals have started discussing the idea of court-packing on Twitter, in interviews and in TL;DR takes. The hosts of “Pod Save America” talked about court packing earnestly on their show — without coming to any concrete conclusions on where they stood — and Rep. Ro Khanna tweeted out his support for a court reform plan on the day the Senate voted to confirm Brett Kavanaugh to the Supreme Court. “I’m pretty surprised that people in the mainstream are talking and writing about it,” Faris said.
Jon Favreau of “Pod Save America” isn’t surprised by the conversation, though. He sees the plan as compelling, if potentially dangerous. “I’m positive my old boss [Obama] wouldn’t be a fan of this because he’s such an institutionalist, and that’s my reluctance as well,” he said. “I value the fact that we have a court right now that — while [it’s] certainly partisan and probably more partisan than it has been in some time — will still act as the one quasi-independent branch of government when we have Trump as president and a Republican Party that’s gone off the deep end.”
On the other hand, Favreau said, “I’m also persuaded by the argument that, well, Republicans have changed the shape of the court by holding a seat open already, and there’s nothing to suggest that they won’t try to change the court in the future if they have the votes to do so.”
Former Supreme Court clerk and law professor Ian Samuel is more certain about court-packing: He sees it as an unmitigated good and has written about its potential upsides. “You could amend the constitution to fundamentally change the way the court works — that’s very hard to do. You could try impeaching justices, but that would also be very hard to do and not obviously justifiable,” he said. “Then you have this idea of changing the size of the Supreme Court that has this wonderful virtue that it’s just doable with ordinary legislation the next time you happen to hold political power in the elected branches of government.”
But the political feasibility of the court-packing plan remains a concern. Khanna, one of the few, if not the only national elected official to come out in favor of a fundamental revamping of the court, says that what’s needed is a reframing of the issue, one that moves away from the historically tainted term “court-packing.”
“I think we could sell it to the public if it’s framed as modern-day court reform,” he told me. One of Khanna’s proposals is an 18-year term limit for justices, after which they would be sent back to sit on circuit courts. “Most Americans love term limits,” he said.
Realistically, Khanna said that it would take a bipartisan plan created by legal scholars on both sides of the aisle for the idea to gain political legitimacy, and that any expansion of the court should require a supermajority to pass through the Senate so that it’s seen as nonideological. That’s going to require moderate Republicans to get on board. “You can imagine a Democratic president would need a Sen. Romney to get to 67 votes,” he said.
Both Khanna and Favreau said it wouldn’t surprise them if 2020 Democratic presidential contenders talked about court-packing or were questioned about reforms during the campaign.
“Every presidential candidate should talk about their relationship to the Supreme Court, what they would do to reform the court, if anything, how they would go about selecting justices, and what they would do if there was a constitutional crisis,” Khanna said. If 2018’s court-packing rumblings are any indication, primary candidates might need to gird themselves for tough questions about structural changes to American democracy. Earlier this year, 68 percent of Democrats said that significant changes were needed to the fundamental structure and design of American Democracy.
For now, though, the biggest Democratic stars aren’t talking much about it. I reached out to a number of likely 2020 candidates’ offices asking to talk about the idea of court reform. None have responded.