Democrats’ Push to Expand the Supreme Court May Backfire

(Bloomberg Opinion) --

In many ways, Democrats have the high ground in the various current debates over the structure of elections and government, and over democracy itself. But sometimes they don't.

On Wednesday we saw that in a new congressional bill to expand the Supreme Court by four justices — in other words, the number needed to give Democratic-appointed members a 7-6 majority. 

Democrats, to be sure, have a reasonable complaint about Republicans' refusal to allow then President Barack Obama to fill a vacancy in 2016, especially after the Senate's GOP majority rapidly filled a Supreme Court vacancy in late 2020. If the current court acts in purely partisan ways — and dictates unpopular Republican policies that could not have been enacted through the elected branches — there may be serious grass-roots enthusiasm for Congress to fight back against it. Expanding the number of seats, a perfectly constitutional option, would be a fair threat for Democrats to raise.

But right now, that grass-roots enthusiasm barely exists. Nor can Democrats claim overwhelming popular support. Yes, they won last November. But even if we adjust for the ways elections are tilted somewhat against Democrats, the 2020 outcome wasn't an overwhelming landslide.

Maybe that's a subjective judgment, but objectively there's no way that majorities in Congress — let alone a supermajority in the Senate — are going to add four Supreme Court justices. Perhaps — I doubt it but perhaps — they might have had a chance to add former Obama nominee Merrick Garland as a temporary 10th justice until he retired or died. But he's busy now being attorney general in the Joe Biden administration.

Not surprisingly, President Biden has dealt with the issue with more political acumen than the members of Congress have. His commission on court reform doesn't appear designed to do much, but it's at least possible it will put together a consensus on some things — perhaps even a plan to impose term limits on the high court and create regularly scheduled vacancies, a nonpartisan idea that has some merit.

Meanwhile, Democrats in Congress would be better off finding a way to add new judges below the Supreme Court level, something that has been needed for some time to keep up with the expanding workload. That too could yield partisan benefits for Democrats, if more modest ones. It might be easier to find support for such a measure if the new vacancies were stretched out over time so that future presidents and Senates would be responsible for filling many of the new positions. 

As for the push by congressional Democrats to add four justices now, it's hard to see the point. Their threat to play constitutional hardball just as viciously as Republican leader Mitch McConnell isn't going to impress anyone if those Democrats don't have anywhere close to the votes to back up their threat. Nor is it likely that seeking four new justices will increase pressure to compromise and, say, expand the court by one or two slots.

The effort is far more likely to backfire, giving Republicans an easy target to rile themselves up over, while only frustrating any Democrats who think there's any serious chance they can succeed. Sure, they aren't the first members of Congress to do a little grandstanding, but there are far better causes available for that.

1. Shannon Bow O'Brien on Trump's undermining of his administration's historical record.

2. Dan Drezner on the U.S, the vaccine and international relations.

3. Nicholas Carnes and Noam Lupu at the Monkey Cage on white working-class voters and Trump.

4. Seth Masket on Biden and Barack Obama.

5. Katherine Tully-McManus on the continuing fight to implement sensible continuity of government measures for Congress.

6. And Reihan Salam has some suggestions for H.R. 1. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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