Don’t mess with the Supreme Court

The COVID-19 pandemic has begun to challenge basic premises of liberal democracy, such as individual rights to privacy and constraints on executive power. But even before the public health crisis drove a rush to emergency measures, liberal democracy was straining under the weight of mounting political polarization, distrust and a win-at-any-cost mindset among political competitors.  

In their important book “How Democracies Die,” Harvard political scientists Steven Levitsky and Daniel Ziblatt remind us how much the stability of democracy rests on a counterintuitive norm: Forbearance. 

Democracy is a political system that gives political power to parties that win free and fair elections. But the stability of democracy – and in particular, the vitality of liberal democracy, with its intricate checks and balances and protections for civil liberties – rests on a peculiar normative foundation. Those who hold power must use it with restraint. They must avoid doing everything they could possibly – and even constitutionally – do to maximize their interests and put their rivals at a lasting disadvantage. 

Much of the decay of American democracy over the last two decades can be traced to the erosion of this master norm. Parties have one-upped each other in legislative tactical maneuvering. The filibuster has morphed from a relatively rare Senate tactic to a regular procedure requiring a special majority for the Senate to adopt just about anything.

As the Brennan Center for Justice has been documenting, a growing number of states have been implementing barriers to voting with the clear effect – and it appears, the intent – of disproportionately disenfranchising racial minorities and thus giving an electoral boost to Republicans. 

And then there has been the growing politicization of federal court nominations. In March 2016, Senate Majority Leader Mitch McConnell (R-Ky.) dragged the process to a new low of political opportunism and procedural unfairness when he prevented Barack Obama’s Supreme Court nominee, Merrick Garland, from even getting a hearing, with the unprecedented claim than ten months before the end of a presidential term was too late for the Senate to consider a replacement.

This escalating pattern of using raw political power to the hilt – irrespective of democratic norms – is familiar to scholars like myself who have studied breakdowns of democracy. We just didn’t expect to see it in modern-day America. As political leaders abandon forbearance and procedural fairness, they unleash a competitive dynamic of ever-more serious violations of the principles that sustain liberal democracy. Many of these are purely normative — that is, they lack constitutional protection. But over many decades, moral commitment to them has become so broadly and deeply rooted across party lines that they have taken on a quasi-constitutional status. One such quasi-constitutional norm is that the voters of each state should determine who wins that state’s electoral votes, even though the state legislature could in theory arrogate that power to itself. Another is the stipulation – not in the Constitution, but in legislation that has stood for 150 years – that the Supreme Court shall consist of nine justices. 

With McConnell’s maneuver to block Garland’s nomination to the Court, and then the Republicans’ good fortune in winning the presidency and then placing two more young justices on the Court (thus ensuring a firm conservative majority), sentiment has been growing in the progressive wing of the Democratic Party for a radical escalation in the partisan war of democratic attrition: Enlarging the Supreme Court. Fortunately, the presumptive Democratic nominee, Joe Biden opposes packing the Supreme Court.  But several of his potential running mates have declined to rule out the idea. And the national political climate of hyper-polarization has nudged into plausibility a scenario that was only recently considered unimaginable.

Democrats have a right to feel angry and cheated by McConnell’s 2016 obstruction of Obama’s Supreme Court pick. That violated core democratic norms. However, enlarging the Supreme Court to, say, 11 or 13 justices would escalate the norm violation in a much more egregious and dangerous way. Not only was this tactic roundly rejected when it was last tried in 1937 by FDR (a president with much greater popularity and a much larger congressional majority than the next Democratic president will have), but such a move would unfold in and further inflame a much more explosive climate of political polarization than in 1937. 

Consider the scenario the next Democratic administration would have to pursue to pack the Court. If the Democrats do win the Senate, they won’t have anywhere near 60 seats to overcome a Republican filibuster. Thus, they would first have to exercise the Senate’s “nuclear option,” eliminating the filibuster (which, while overused, does provide a check on the tyranny of the majority). Then they would have to ram through by a purely partisan vote (and a razor-thin margin in the Senate) one of the most profound changes in history to our de facto constitutional structure. 

The current meltdown of Trump’s electoral prospects makes unified Democratic control of the House, Senate, and White House next year a real possibility. In that case, pressure could build on a Democratic president to “restore balance” on the Court. While it is unlikely that all Democratic senators would go along with this scenario, it is hard to overstate the damage it would do to the Court’s legitimacy if they did.  

And it would not stop there. When the tables turned some day and Republicans again won unified control of the House, Senate and White House, they would probably enlarge the Court again to restore their “rightful” majority. The pinnacle of our judiciary (if not the entire branch) would then become a political football to be wrestled over the end zone of total victory, and the founders’ vision of separation of powers would be rendered a farce.

There is a simple and elegant preventive solution — a constitutional amendment, shorter than any existing one, simply stating: “The Supreme Court of the United States shall be composed of nine justices.”

Bipartisan sentiment is slowly gathering in favor of such a “Keep Nine” amendment. Biden would be wise to endorse it. That would not only help arrest the slide in democratic norms, it would also be smart politically. By signaling to Republican and independent voters that he would not be a norm-busting president, he would make it easier for them to back him in November. And he would signal to Republicans in Congress that he wants to be a president who heals the nation and governs effectively, rather than deepen the wounds and resentments of these recent hyperpolarizing years.

Larry Diamond is a senior fellow at the Hoover Institution and the Freeman Spogli Institute for International Studies at Stanford