How the Democrats can pack the court and de-escalate at the same time

We may have reached a degree of disfunction that will force a fundamental change: Increasing the number of justices on the United States Supreme Court, or packing the court.

Democrats will be outraged if Republicans move forward with filling the vacancy caused by the death of Justice Ruth Bader Ginsburg so close to the election after refusing to bring President Obama’s nomination of Merrick Garland to a vote in 2016. In response to a potential election-year confirmation of President Trump’s anticipated nominee, Democrats are openly discussing packing the court if Joe Biden wins the presidency and Democrats win both houses of Congress in the November election.

Packing the court is remarkably easy to do legislatively. A bill increasing the number of seats on the court simply needs to pass both houses of Congress and be signed by the president. The Constitution does not proscribe the number of justices, and in our history we have had both fewer and more than nine members of the court at any given time.

The big impediment to court packing is political. Historically, packing the court would have been seen as a major violation of political norms that might in turn expose the party making the change to losses in the next election. In light of the Republican flip-flop on seating a justice in an election year, court packing by the Democrats would likely to be seen as par for the course, rather than particularly norm-breaking.

A more serious political objection to court packing is the prospect of endless quid-pro-quo retaliation in the future. If the Democrats add four seats to the court in the next Congress, won’t Republicans just add four more next time they control the presidency, the House and the Senate? As Biden said earlier this year – before the current controversy about Justice Ginsburg’s seat arose – “I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices.” 

Democrats could try to avoid an endless cycle of retaliation by combining the addition of more seats to the court with a larger reform that imposed limits on the justices’ terms of service. The constitutionality of setting term limits for Supreme Court justices by statute is not nearly as clear as the constitutionality of packing the court. 

There is a good argument that statutory term limits would be constitutionally permissible if each justice were given a lifetime appointment to serve in the federal courts that included a time-limited term of service on the Supreme Court. Chief Justice Roberts and Justice Breyer have both spoken favorably of the idea of Supreme Court term limits in the past. The general idea has been supported across the political spectrum, from the liberal-leaning Center for American Progress to the conservative legal luminaries Steven Calabresi and James Lindgren (who, it should be noted, had concerns about implementing Supreme Court term limits without a constitutional amendment.).

Even with these open constitutional questions, Democrats could accompany an increase in the size of the court with a separate law establishing statutory term limits. Even if the term limits were struck down, the newly-appointed justices would remain on the court, securing a liberal majority on the court in the near term.

The worst-case scenario for the Democrats is a tit-for-tat cycle of expansion. The best-case scenario is that the term limits plan would be held to be constitutional, reducing the degree of future political strife.

Increasing the number of justices would reduce the stakes of any given court vacancy — so would limiting the justices’ terms of service. The current environment for Supreme Court appointments is so poisonous because the seats come up so rarely and because the lifetime term of each appointment dramatically raises the stakes for each vacancy. 

For much of the 20th century, Supreme Court justices served for an average of around 15 years. More recently, justices routinely have served for far longer. With the current trend of appointing younger justices to maximize their time on the court, it may not be unusual for justices to serve for 30 to 40 years. Leaving aside the politics of appointment, this is far too long for anyone to sit in a position of such power.

Supreme Court term limits would be a significant change in our judicial system, but it is a change that is needed. The current process of appointing Supreme Court nominees has become so politicized that it has reached a breaking point. It is far from clear that it will be possible for a president of either party to get a Supreme Court nominee confirmed if the Senate is held by the other party. 

By combining an increase in the court’s size with term limits, Democrats could simultaneously address the Republicans’ perceived theft of the 2016 vacancy and de-escalate the fraught politics of Supreme Court appointments. 

A well-designed term limit plan would ensure that each president has the opportunity to nominate Supreme Court justices. Limited terms would encourage presidents to value experience over youth in selecting nominees. Reducing the stakes of any given appointment from lifetime service to a limited term would disincentivize norm breaking. It may also end the never-ending cycle of increased politicization of the Supreme Court

D. Benjamin Barros is dean and professor of law at the University of Toledo School of Law.