Is Court Packing of the US Supreme Court Justified?

Guest Blogger

Rivka Weill

There is a deep sense of crisis regarding the US Supreme Court’s (SCOTUS) legitimacy. President Biden has tasked a Commission with reviewing and recommending possible reforms to restore the Court’s legitimacy. My argument in Court Packing as an Antidote based on an examination of all Supreme Court nominations and confirmations during a presidential election year is twofold: (1) There was serious abuse of the appointment process involved in the Senate’s treatment of the SCOTUS nominations of Judges Merrick Garland and Amy Coney Barrett. (2) The remedy, by original constitutional design, to this abuse of the appointment power is to engage in court packing. My Essay forms part of a special volume on appointments, which the Cardozo Law Review prepared and submitted to the US Senate ahead of the confirmation vote on Justice Amy Coney Barrett.

To appoint a US Supreme Court Justice, the President must nominate a candidate. The Senate then considers this nomination and decides whether to confirm it. In March 2016, following the death of the Conservative Justice Antonin Scalia, President Barack Obama nominated Judge Merrick Garland to fill the vacancy. However, the Republican-controlled Senate refused to hold a vote on his candidacy. Republican Senators argued that, at this time of the presidential election year, they must await the election’s results. Fast forward to 2020, when Liberal Justice Ruth Bader Ginsburg died on the eve of the presidential election (September 18). This time, the Republican-controlled Senate rushed to confirm President Trump’s nominee, Judge Amy Coney Barrett, in late October, after millions of Americans had already cast their ballots. How should we treat the fate of these nominations? I suggest that we attempt to hold a principled discussion by envisioning these facts devoid of the names of the political parties and individuals involved. My argument is not predicated on one’s view on the Court’s agenda but rather is a principled argument addressing serious breaches of constitutional norms regarding appointment of SCOTUS candidates during presidential election years that severely compromise the Court’s legitimacy and independence.

The SCOTUS Bipartisan Constitutional Norm

In my Essay, I establish the existence of the “SCOTUS Bipartisan Constitutional Convention,” or norm, dating back to the establishment of the Republic. Under the convention, whenever a SCOTUS vacancy occurred, American presidents always nominated a candidate, even if the vacancy occurred after elections, and even if they already lost the election. Thus, Presidents Obama and Trump acted in accordance with American tradition when nominating Garland and Barrett respectively. At the same time, under the SCOTUS Bipartisan Convention, the Senate interpreted its “advise and consent” constitutional role such that it does not confirm a nomination to SCOTUS in a presidential election year, unless it garners bipartisan consent. Some members of the other party must support the nomination to attest that the appointment process is legitimate, and the candidate is suitable. If the nomination cannot muster bipartisan consent, then it must await the endorsement of an incoming Senate with a fresh mandate from the people. Thus, Justice Barrett’s appointment based on Republican support alone in that timing is marred.

The convention applies only in presidential election years, as the President’s mandate wanes, not midterm elections. I define presidential elections to include all nominations made within the presidential election’s calendar year, or all confirmations made within twelve months prior to the President taking office. This nuanced definition allows to account for the fact that, over the course of American history, the time of assuming presidential office changed from March to January with the adoption of the Twentieth Amendment. The focus on presidential elections is justified because the President enjoys the power to initiate and set the agenda regarding the SCOTUS appointment process.

The SCOTUS Bipartisan Convention applies only regarding SCOTUS nominations because it is the Court of last resort. Its decisions enjoy the power of stare decisis. The Court de facto makes law, whether we like it or not. Thus, the stakes are so high that, absent bipartisan endorsement, it is justified to paralyze the appointment process and await a new Senate.

To prove the existence of a constitutional convention or norm, three conditions must be met: (1) Practice - The political actors acted in conformity with this convention. (2) Rhetoric- The political actors acknowledged that their behavior is driven by this convention. (3) Rationale – There is a logic justifying this convention.

In my Essay, I examined all 42 SCOTUS nominations/confirmations conducted during presidential elections years prior to Justice Barrett. Judge Garland is the only case in which the Senate did not hold any type of vote on the candidacy when the nomination was done before June 15th of a presidential election year. The June 15th cut-off date aligns with congressional treatment of the presidential transition process more generally. Thus, the Presidential Transition Act requires the sitting President to establish a Transition Coordinating Council at least six months before the presidential election. This Council is responsible for preparing the executive branch and presidential hopefuls for the possible transition of power following elections.

Senators often vote differently on procedural rather than substantive matters. Thus, we do not know whether Garland would have been confirmed had the Senate held a vote on his SCOTUS candidacy. By preventing a vote, the Republican Senators escaped accountability. They did not pay a political price for opposing a candidate, considered a moderate. Nor did they risk the possibility that Garland would have been confirmed on the merits.

Similarly, except for the appointment of Justice Peter Daniel in 1841, in the build up to the Civil War, no appointment violated the SCOTUS Bipartisan Convention until Barrett’s. Barrett was confirmed in October 2020 based on Republican Senators’ support alone. Thus, the Senate had twice in recent years treated SCOTUS nominations in presidential election years in a way that violated the convention. In both cases, the Senate’s actions amounted to an illegitimate transfer of appointment power from one President to another.

At the time, Republicans argued that Barrett’s differential treatment is justified, because Garland was nominated when control of the government was divided (Democratic President, Republican Senate) whereas Barrett was confirmed in a united government scenario (Republican President and Senate). However, according to the SCOTUS Bipartisan Convention, SCOTUS appointments during presidential election years are, in fact, more justified during a divided government. In a divided government situation, in which the Presidency and Senate are controlled by different political parties, no confirmation may de facto be done without bipartisan consent.

As for rhetoric, the political actors have been speaking the convention’s language since the US’ establishment. In the first transition of power from Federalists to Anti-Federalists in 1800, President Jefferson famously denounced the outgoing President Adams’ midnight appointments of judges. Jefferson viewed the appointments as unfair and non-democratic. Yet, he did not criticize President Adams’ SCOTUS appointments, including Chief Justice Marshall’s, because they were done with bipartisan consent. The Framers of the Constitution understood that presidential transition times call for presidential restraint, yet bipartisan endorsement may legitimize even SCOTUS appointments. In the 20th century, Senators recognized the SCOTUS Bipartisan Convention as the “Thurmond Rule” in the 1960s or the “Biden Rule” in the 1990s. This was an acknowledged convention even when violated. In the case of Peter Daniel, the Whigs boycotted the vote to express its illegitimacy, since the vote was done mere days before a President from the other party took office.

Further, this convention is grounded in solid, principled rationales: (1) Democracy – During presidential election times, it is important to enable the people to have their say on such a critical, irreversible, act in the life of the nation, unless both parties endorse the appointment as legitimate. (2) Agency – The incentive to dictate the public’s life, even after Presidents leave office, is the greatest during presidential election years. What better way to do it than appoint Supreme Court Justices?

The Senate’s practice of obtaining bipartisan support for SCOTUS confirmations on presidential election years cannot be attributed to the effects of the filibuster, rather than the SCOTUS Bipartisan Convention. Supposedly, if you need two-thirds majority or 60% to overcome a filibuster through a cloture vote, it is difficult for a single party to whip up the needed vote count and this explains the need for bipartisan consent. However, for most of US history, until 1949, there wasn’t even a cloture rule regarding SCOTUS appointments. Yet, it seems that there was no utilization of the filibuster against SCOTUS confirmations until the confirmation battle over Justice Abe Fortas’ nomination for Chief Justice in 1968, after the cloture’s establishment. Rather, throughout US history, though there were contested appointments during presidential election times, they required bipartisan support to pass. Furthermore, the filibuster mechanism and the SCOTUS Bipartisan Convention aim to achieve different objectives. The filibuster is intended to enable the minority to have a voice and is most effective near elections, when it can become a veto rather than a delaying mechanism. The SCOTUS Bipartisan Convention, on the other hand, is intended to protect the incoming majority, not the existing minority. The convention was thus effective throughout the entire presidential election year, not just near elections.

Court Packing as a Remedy

Supposedly, the political actors intentionally left this matter in the care of a constitutional norm. The voters may sanction Senators, who breached the norm, by ousting them from office. However, the norm is otherwise not enforceable. This perception relies on scholars’ understanding of the writings of the most renowned British constitutional scholar of the nineteenth century, Introduction to the Study of the Law of the Constitution, by Albert Venn Dicey. However, I contend that Dicey never intended elections to serve as the only enforcement mechanism of constitutional conventions. Rather, he intended that another constitutional body would enforce the norm on the breaching constitutional actor. He suggested, for example, that the Crown enforce constitutional norms on a breaching Upper House. My argument is that, applying Dicey’s logic, since the Senate breached its constitutional norm to enforce the SCOTUS Bipartisan Constitutional Convention regarding Garland and Barrett, the enforcement mechanism is that Congress as a whole, exercising its legislative function, will enact a statute to enlarge the Court’s size. This way appointment power will be used to neutralize the effects of its misuse.

Court packing is justified not just as a logical countermeasure. It is the antidote to a partisan takeover of SCOTUS by original constitutional design. The Framers of the Constitution intentionally did not set the size of the Court. They left Congress, by statute, to set the number of Justices. When President Adams reduced the number of Justices to affect the Court’s ideology and prevent Jefferson from exercising the appointment power, Congress undid his act. The Framers were aware of the existence of this constitutional weapon/remedy (depending on one’s viewpoint) from the very start. They resorted to court packing and did not question whether this act is constitutional, the way they debated the First Bank.

In fact, I believe that the Framers would not have allowed unchecked life-tenure for Justices, if not for the availability of court packing. They were familiar with court packing based on the UK’s experience. In the early 1700s, Queen Anne packed the Upper House of the British Parliament to enable the passage of the Treaty of Utrecht, which enlarged inter alia the American colonies’ territory. The Framers treated this Utrecht Treaty as a model treaty on how to conduct foreign affairs. They surely knew how Queen Anne secured the ratification of this treaty at home. Moreover, as the Founders seceded with the Declaration of Independence, they enumerated their grievances against King George the Third, while King George was busy creating peers/Lords at home to pass legislation.

Why would packing the UK’s House of Lords (“Lords”) be relevant to SCOTUS court packing? After all, it would seem that the US Senate, rather than SCOTUS, is the equivalent constitutional body to the Lords. The answer is that, during this period, the Lords fulfilled two functions: They were simultaneously a second legislative chamber and the highest Court in the land. Moreover, they exercised judicial review over primary legislation as a second legislative body, rather than as a court, to avoid accusations that what they allowed in their capacity as a legislative body, they later undid as a judicial body. The Framers were fully aware of this dual nature of the Lords. To avoid imposing these conflicting roles on SCOTUS, they decided not to make SCOTUS also a second legislative chamber. They further opted not to allow the President to pack the Court, the way the Crown may do in the UK. Rather, they entrusted Congress with this unconventional weapon/remedy. Yet, they left court packing available as a check on unelected judicial power.

We live in historical times. The SCOTUS appointment process was seriously compromised twice in recent years. To restore SCOTUS’ legitimacy, Congress needs to enact court packing, preferably with bipartisan consent. In contrast to FDR’s failed court packing plan, which was prompted by dissatisfaction with particular judicial rulings, this time action is needed to neutralize a partisan takeover of the Court that has occurred. Thus, such court packing would not constitute a threat to judicial independence like FDR’s plan but would rather provide a way to restore it. 

Rivka Weill is Professor at Harry Radzyner Faculty of Law, Reichman University (formerly IDC). You can reach her by e-mail at rweill@idc.ac.il.This blog post is based on her essay, Court Packing as an Antidote, 42 Cardozo L. Rev. 2705 (2021).