On the Saturday following the passing of Justice Ruth Bader Ginsburg, I attended an outdoor, candlelight vigil commemorating her life and legacy. I had arrived a few minutes early, and I could see there was a decent-sized crowd—at least, greater than the crowd of three that I was a part of at a movie theater on the premiere date of On the Basis of Sex. As I waited for the vigil to commence, I looked around and immediately began to think about the unique stories belonging to those gathered. Based on what I saw and heard in those moments, it was clear that people from all walks of life were gathered: people of different ages, professions, genders, sexual orientations, and religions, among other differences. And together, they were mourning.
I mention this candlelight vigil because, in a unique and ominous way, it was a reminder of the power that the Supreme Court wields in today’s United States. Suddenly, because of the death of one individual, millions of people living in this country began to seriously doubt the endurance of some of their rights and liberties—those that were secured by a balanced Supreme Court, one that no longer exists. A week before the 2020 election, Amy Coney Barrett was sworn in as the 103rd associate justice of the Supreme Court; she now sits on the bench as the sixth justice of nine to be appointed by a Republican president. On the topic of the Supreme Court, for progressives, the outlook is dismal; more losses are on the horizon. And to mitigate the regression to come, there are few options. As Democrats begin to explore reforms to the judiciary, they must proceed with caution, especially when it comes to court-packing: Democrats should not deliver the nail in the coffin of judicial independence—at least, not yet. Instead, other reforms must be explored, and the other branches must be held accountable.
Before we discuss the judicial branch’s current state, it is essential to understand the role of the judiciary as imagined by America’s founders. In Federalist 78, Alexander Hamilton presented the argument in favor of the judiciary, describing it as “the least dangerous” branch that is “least in capacity” to impact “political rights.” Thus, the Framers did not design the judiciary as a partisan institution; it is for this reason that judges are not bound to voters’ desires, as are legislators and presidents, who face elections. The reasoning behind this is best captured in The Spirit of Law, where Montesquieu argues “there is…no liberty if the power of judging be not separated from legislative power and the executrix.” And for most of United States history, judicial independence was the norm—the Supreme Court, for the most part, maneuvered around being dragged into the political fray. Doing so is essential to the judiciary’s image, as it legitimizes the Court by casting an image of it being composed of individuals committed to fulfilling their constitutional obligations rather than carrying out a partisan agenda.
Over the last couple of decades, though, political crises surrounding the Supreme Court and its vacancies have become all the more frequent. Part of this involves the nature of the Supreme Court’s docket. The Court has ruled on the result of a contested election, gerrymandering, the constitutionality of specific provisions under the Voting Rights Act of 1965, and campaign finance laws. In so doing, the Court has directly impacted the outcome of many elections—from the local to national levels. This trend is partly responsible for the Supreme Court’s increased politicization, but one cannot deny the Senate’s role in placing the Court in the middle of the political fray.
In 2016, after the death of Justice Antonin Scalia, President Obama nominated Merrick Garland to the Supreme Court. The confirmation of Garland, by no means, would have been a significant triumph for progressives. President Obama knew the Republican-controlled Senate would not confirm an individual whose beliefs aligned with Justices Ginsburg’s or Sotomayor’s, so Garland was a compromise nominee; many categorized his judicial philosophy as moderate on the ideological spectrum. And even then, Senate Majority Leader Mitch McConnell declared this nomination null and void, reasoning that the next President should choose the next justice—seven months before the election.
This year, as ballots were being cast, Senator McConnell acted swiftly to confirm Justice Barrett to the Supreme Court. When these two instances are juxtaposed, they communicate a dangerous precedent: if a nominee does not pass the unofficial litmus test of the controlling party in the Senate, they will not be confirmed. The Senate majority’s hypocrisy has been detrimental to the preservation of the judiciary as a nonpartisan institution.
The question, then, arises: can this be remedied? Since President Trump’s nomination of Justice Brett Kavanaugh, which shifted the Court’s ideological makeup further to the right, some members of the Democratic Party have discussed increasing the number of justices on the Supreme Court. Since the nomination of Barrett, Democratic leaders have signaled they are entertaining this possibility. When questioned about court-packing, Senate Minority Leader Chuck Schumer said, “Nothing is off the table.” And during this election season’s debates, President-elect Joe Biden and Vice President-elect Kamala Harris had been questioned about their positions on court-packing. The Biden Campaign has, notably, displayed a reluctance to giving any previews as to what their position might be on the court-packing option if it is one day viable. And they do so with good reason, because the precedent that this will set is dangerous and irreversibly damaging. In today’s political climate, when allegiance to party trumps allegiance to oath, the long-term effect of increasing the number of justices to the Supreme Court is foreseeable: a political tit-for-tat will, inevitably, ensue. Almost every time a party seizes control of both the Senate and the presidency, more justices will be added to the Supreme Court.
Democrats must come to terms with the reality of the situation of having a 6–3 conservative majority on the Supreme Court: it’s a catch-22. The issue of whether Democrats should pack the Court becomes a bleak ultimatum: a pick between the semblance of our government’s well-being, or a fighting chance at combating climate change and protecting the rights and liberties that so many value—the rights to vote, marry, make important decisions about their bodies, et cetera. Thus, packing the Supreme Court will yield the protection of one of the aforementioned options and the erosion of the other.
It is unlikely, though, that packing the Court will be a viable course of action, regardless of the apparent merits of the arguments in favor. History has proven the divisive nature of court-packing. In 1937 when President Roosevelt proposed expanding the Court, the President—who was widely popular and skillful at legislating—could not even get the bill out of the Senate Judiciary Committee. If Democrats do capture a majority in the Senate this election, it will be a narrow majority, and it is fair to say that many constituents of flipped Senate seats will not be fond of court-packing. But that is not to say that the Supreme Court will be immune from reform. There have been discussions of Supreme Court reforms that have only existed in the realm of academia, which are now being brought into the national spotlight. Such reforms include limiting the tenure of Supreme Court justices and exercising Congress’s constitutional power to regulate the Supreme Court’s jurisdiction. The change that will likely come is the less radical, more widely welcomed, and less impactful change: establishing term limits for Supreme Court justices. But to preserve the legitimacy of the judiciary, we may be looking in the wrong direction.
In the Supreme Court’s current discourse, there is so much attention placed on what the Supreme Court is supposedly doing wrong, and few hold Congress accountable for those wrongdoings. Upon close inspection, the ways in which the Senate has handled Supreme Court nominations in the last couple of decades demonstrate the legislative branch’s deterioration of decency and integrity—and I’m not only referring to the Republican majority’s blatant hypocrisy in 2020. In light of Justice Ginsburg’s passing, I watched part of her nomination hearings before the Senate Judiciary Committee in 1993, and I noticed striking differences. What surprised me the most was the exchange between the nominee and the senators: Justice Ginsburg was engaged in substantive discussions about judicial precedents with both parties’ senators. In fact, some Democratic senators asked tough questions that, today, you would expect from senators of the opposite party. These interactions were vastly different from what we have seen in the last couple of decades, when senators have entered confirmation hearings of Supreme Court justices with the goal of playing to the cameras, rather than with the goal of advising and consenting.
So, as we search for remedies that will restore faith in the judiciary and rectify an imbalanced Supreme Court, where five of the nine justices have been nominated by presidents who lost the popular vote, we cannot forget to hold the other two branches accountable. Right now, that is where the energy must be spent: Democrats have won the presidency and could attain a majority in the Senate, depending on the results of Georgia’s run-off elections. If packing the Court proves to be an attainable, impactful, and perhaps bipartisan reform, then it might be wise to do so. But Democrats must first examine all of the options available, because partisan court-packing is a reform that is currently unreliable and unattainable.
At the end of the candlelight vigil on that Saturday evening, someone called my name as I was leaving. When I looked closely, I realized that it was my boss; given that it is now the age of Zoom and remote work, we had never met in person. I told her, “It’s so nice to finally meet you! Though, it’s unfortunate that it’s under these circumstances.” And her response was one that left me utterly confused: she said, “I’m sorry.” When I asked why, she explained how she was sorry for my generation for her generation’s inaction. That two-word phrase of sorrow, concern, and some degree of disillusionment captures the reality of our current situation: it’s a catch-22.