The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing

Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court.

For the past few years, court packing has largely been a fringe idea, promulgated by leftist scholars and activists infuriated by Senate Majority Leader Mitch McConnell’s refusal to hold Supreme Court confirmation hearings for Merrick Garland in 2016. For the most part, the Democratic establishment has been resistant to the notion, on the grounds that Republicans would someday surely try to respond in kind.

We understand these objections; until recently, we shared them, and dismissed court packing as institutionally corrosive and politically unserious. But no longer. The current battle over the Supreme Court changes the calculus; if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.

The constitutionality of court packing has never been in doubt. While the Constitution says that “the judicial Power of the United States, shall be vested in one supreme Court,” it doesn’t provide for the number of justices, which is set by Congress. For more than a century and a half, the legislature has refrained from exercising its statutory power to expand the size of the Supreme Court, which has been fixed at nine since 1869. It’s come close at times—most famously under Franklin D. Roosevelt—but the party in power has ultimately always rejected the potential short-term political gain of adding seats to the Court as coming at too high a cost to its long-term institutional credibility. The addition of justices by a partisan majority of Congress risks creating the perception that the Court is a political body, and that judges are mere functionaries of the party of the president who appointed them—a perception corrosive to public faith in the rule of law.

The Supreme Court has always posed what the constitutional scholar Alexander Bickel famously called the “countermajoritarian difficulty”: It exists within a democracy, yet consists of unaccountable justices with the power to overrule actions taken by elected representatives. But recently, the Court has come to more closely represent the interests of a powerful minority. Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.

But none of this necessarily meant that the number of justices on the Court should be increased—until now. The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work. Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.