Pack the Court? Putting a popular imprint on the federal judiciary

A man holds a flag outside the U.S. Supreme Court, as the Trump v. Hawaii case regarding travel restrictions in the U.S. remains pending, in Washington, U.S., June 25, 2018. REUTERS/Toya Sarno Jordan     TPX IMAGES OF THE DAY - RC17036C7760

In 1996, to head off calls to impeach a life-tenured federal judge for ill-considered remarks about police officers, Chief Justice William Rehnquist cautioned that “judicial independence does not mean that the country will be forever in sway to groups of non-elected judges.” He recalled Franklin Roosevelt’s failed 1937 proposal to pack the Supreme Court by adding six pro-New Deal justices, but added that vacancies soon allowed FDR in regular order to achieve a New Deal-friendly nine-justice Court (and avert a threat to the Court’s legitimacy). “[T]here is,” Rehnquist said, “a wrong way and a right way to go about putting a popular imprint on the federal judiciary.” His “right way”: popularly elected presidents and senators reshaping the judiciary by the normal process of filling vacant judgeships.

Today, Democratic politicians and others under a “pack the Court” banner advocate adding two or more seats to the Supreme Court to undo the slim five-justice Republican-appointee majority. Former Attorney General Eric Holder, for example, said recently, “Given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations.”

Congress doesn’t make major structural changes in the federal judiciary absent long-festering dysfunction; it took several decades to create the intermediate appellate courts in 1891. The current proposals to enlarge the Court won’t go anywhere soon, and they shouldn’t. Adding seats could turn the size of the Court into a partisan yo-yo dependent on the prevailing winds in Washington. The current Court, however, as I’ll explain, could provoke a legitimacy deficit that could make structural change more plausible.

Rehnquist’s 1996 comments recalled, perhaps unwittingly, the late Yale political scientist Robert Dahl’s classic article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Dahl, a preeminent democratic theorist, wrote that article in 1957 amid complaints that the Warren Court was integrating public schools and protecting suspected Communists’ civil liberties, contrary to majority sentiment.

Dahl acknowledged that the Court jeopardizes its “unique legitimacy … if it flagrantly opposes the major policies of the … [policymaking] alliance” dominant at the time. But, he said, that has not been a major problem because historically, presidents on average have appointed two justices per term. A two-term president’s four appointments would normally reel in an out-of-the-mainstream Court majority. Dahl’s case-law analysis let him conclude that the “policy views dominant in the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” That made it “unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.”

When Dahl wrote and for some years after, his appointments analysis was solid. From 1869 (when Congress fixed the size of the Court at nine)[1] through 1993 (Grant through H.W. Bush), all but three of the ten two-term administrations appointed four or more justices. Eight of the ten one-term administrations appointed two or more. Had FDR appointed any justices in his first term (1933-1936), he might have diluted the solid bloc of “four horsemen”— appointed between 1910 and 1922—who regularly picked up at least one or more votes to create what Dahl called the “disaster [of] the early New Deal cases.”

So, for most of U.S. history, the non-elected, non-term-limited Supreme Court has maintained its legitimacy because appointment patterns have kept it fairly well aligned with dominant lawmaking majorities.

Until the 1950s, justices’ median tenure varied in the 11 to 15 year range. Twenty-year-plus terms began to increase with the 1960s appointees, and the tenure of all but one of the seven justices appointed between 1981 (O’Connor) and 1994 (Breyer) exceeds 20 years (Souter served 19). Consequently, since 1993 presidents have had fewer vacancies to fill than did their predecessors. Presidents Clinton, W. Bush, and Obama served two terms but each had only two appointments (putting aside the 2016 Scalia vacancy that arguably Obama was entitled to fill).

The composition of the Court today and for some years to come may challenge the Dahl/Rehnquist assumption that the Court will not and should not long be far afield from the policy views dominant among national law making majorities.

The Court has five Republican and four Democratic appointees, comprising conservative and liberal-moderate blocs as shown below. Most decisions do not split that way—of the current term’s 25 decisions announced through early April (many on fairly technical questions), only two did, while 14 were unanimous. But clearer divisions are likely to emerge in cases with greater policy significance—which are often released in the days leading up to the Court’s end-of June adjournment.

R-appointees Age in 2019 Yrs. on Ct. D-appointees Age in 2019 Yrs. on Ct.
Thomas 71 27.5 Ginsburg 86 25.5
Roberts 64 13.5 Breyer 81 24.7
Alito 69 13.1 Sotomayor 65 9.6
Gorsuch 52 2.0 Kagan 50 8.6
Kavanaugh 54 0.6

The two most recent Republican appointees might well serve at least 25 more years, and Chief Justice Roberts and Justice Alito, at least 15 more. If President Trump is able to replace Justices Ginsburg and Breyer, the Republican-appointee majority on the Court will likely be concrete-solid for two decades or more.

In noting that presidents’ appointments generally kept the “policy views dominant in the Court … [in] line with the policy views dominant among the law making majorities,” Dahl no doubt assumed that presidents’ popular election victories meant that they generally shared those policy views. In 1957, it had been seven decades since the presidential popular-vote winner lost the Electoral College.

Today, four of the five conservatives were appointed by presidents who gained office despite losing the popular vote. President George W. Bush appointed Chief Justice Roberts and Justice Alito early in his second term, which he won with a majority of votes, but a necessary prelude to that second term was his first term, secured with an Electoral College victory despite a narrow popular vote loss. And a president who lost the popular vote by nearly three million has (so far) filled two vacancies, including one that in normal times would have been filled by a popular-vote majority president (Obama, who saw the Senate refuse to consider his March 2016  nominee, Merrick Garland). Contrary to Dahl and Rehnquist, today’s Court majority is not a product of national preferences as revealed in the popular presidential vote.

Furthermore, until the 1960s, the Senate confirmed most Supreme Court nominees by voice vote. And almost all recorded votes before and after the 1960s had sufficient aye votes to leave little doubt that the senators supporting the nomination represented a majority of the population.

The votes for the current Court were:

Supreme Court nominee Vote
Ginsburg 1993 96-3
Breyer 1994 87-9
Roberts 2005 78-22
Sotomayor 2009 68-31
Kagan 2010 63-37
Alito 2006 58-42
Gorsuch 2017 54-45
Thomas 1991 52-48
Kavanaugh 2018 50-48

The senators casting aye votes for the first six on the list represented a majority of the U.S. population. Those voting for Justices Gorsuch, Thomas, and Kavanaugh did not, based on ascribing the total state population to the “aye” column where both of a state’s senators voted aye, and half of it when the vote was split. Thomas’s aye votes represented 48.7%, Gorsuch’s, 46.6%, and Kavanaugh’s, 44.4%. We shouldn’t make too much of these figures, given the tug of competing pressures in nomination politics (and accepting the constitutional fact of a non-representational Senate). But they suggest at best another weak link between national policy preferences and majority support for three members of the Court’s conservative bloc.

Thus, the question: In 2020, voters may well give a popular and Electoral College victory to a candidate with at least a slightly left-of-center disposition, along with a Democratic Congress. That lawmaking majority would likely produce legislation about the environment, health care, agency regulations, legislative gerrymandering, civil rights and gender matters, and other areas. Will this Court, as presently constituted or with even a greater Republican majority, turn back constitutional challenges to that legislation? Or will its conservative majority—placed in office by presidents who lost the popular vote and helped by the constitutionally malapportioned Senate—invalidate those laws?

If the latter, the Court may resemble the Court of Roosevelt’s first term and thus provoke another challenge to the Court’s legitimacy. The case for structural change will grow stronger, unless judicial statesmanship can modulate the jurisprudential tendencies of the conservative majority. In 1937, Chief Justice Charles Evans Hughes defended the Court against FDR’s charges that it was behind in its work and thus needed more members. That same year, in several key cases, he and Justice Owen Roberts signaled—even before Roosevelt’s first appointee— an end to the slim Court majority that had resisted state and national economic regulatory legislation.


[1] Nine was the number of judicial circuits that the 19th-century justices served in their capacity as trial judges on the circuit courts that met in each judicial district. The number had fluctuated between five and ten, depending on the number of circuits.