The commission appointed by President Biden to assess his options with regard to the Supreme Court is now releasing its report. It makes no specific recommendations, but several of its members have advocated “packing” the court to achieve a liberal majority. This move is likely to garner more support if the High Court were to overrule Roe v Wade, which the recent oral arguments in a Mississippi abortion-law case suggest it might do.
Were the Democrats to pack the currently conservative Supreme Court with a majority of liberals, you can be sure the Republicans will play tit-for-tat whenever they take control over the other two branches. They would pack the court with more conservative justices — and then the Democrats would add even more liberals whenever they returned to power.
What would then become of the Supreme Court? And what would become of a woman’s right to choose abortion?
No one can know for certain, but the likely outcome would be an even more politicized, partisan High Court than we have today.
Proponents of court-packing will argue that the Republicans have already packed this court by refusing to confirm President Obama’s nominee, Merrick Garland, in 2016 and then confirming President Trump’s nominee, Amy Coney Barrett, on the eve of the 2020 election. Her seat legitimately belongs to the Democrats, they believe, and it was stolen from them.
They may well be correct, but that does not justify a systemic change in the Supreme Court that would alter the nature of that institution forever, turning it into a court whose composition would change with every political shift in power.
Nancy Gertner, a former federal judge, tried to make the case for court-packing this way: Republicans have “manipulated its membership” and “whatever the cost of expansion in the short run, I believe will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”
But she got it exactly backwards: There might be benefits in the short run but, in the long run, it would undermine judicial independence and the rule of law by turning the Supreme Court into an unstable institution, whose membership would constantly be expanded to meet the short-term needs of the party in power.
Packing the court to preserve a woman’s right to choose also would turn that important right into a political football whose content would vary with political trends. Today a woman would have that right; tomorrow, she wouldn’t — and the day after tomorrow there would be uncertainty.
Most fundamentally, court-packing would weaken our Constitution, our system of checks and balances, and the rule of law. Proponents of court-packing will argue that these evils have already occurred due to the actions of Republicans. But court-packing would exacerbate them and make them more enduring.
What, then, should Democrats do to preserve a woman’s right to choose and other fundamental rights that may be at risk from the current conservative majority?
They should try to use their legislative and executive power, rather than diminish the power of the judicial branch. They should get Congress to pass a national right-to-choose law that legislates that right under the Constitution’s Commerce Clause. Abortion is an issue that goes beyond the borders of any particular state; many women and girls who are denied an abortion in Mississippi or Texas will travel to more permissive states, thus burdening those states’ clinics and hospitals.
I believe Congress has the constitutional power to legislate a national right to choose, though it is far from certain that this Supreme Court would uphold such an exercise of Commerce Clause power. Nor is it certain that Democrats have enough Senate votes to enact such a law.
But lack of certainly is not a good enough reason to endanger the credibility and authority of the Supreme Court — an institution that has served the nation well over time, despite its many questionable (and some terrible) decisions. It may be “broke,” but the “fix” of court-packing is more dangerous than leaving it as it is.
Some repairs, however, may well be in order. Lifetime tenure for justices is a mistake; there ought to be term limits — say, 15 to 20 years. Only kings, queens and popes should serve for life. Age limitations — say, age 70 — would be a mistake, however, because it would encourage presidents to nominate younger and younger justices. Justices Holmes, Brandeis and Ginsburg, among others, were 60 when they were nominated, and they served with distinction for decades.
So, let’s not pack the court as a short-term response to today’s conservative bent. Over the long term, a stable court will do more to preserve important rights than an unstable court whose membership would shift with the political winds.
Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Vaccine Mandates.” Follow him on Twitter @AlanDersh.