While Democrats call for packing the court, others see just another backlash that would further destabilize our already fragile democracy.
By Kyle J. Morgan, Ph.D. | Friday, September 25, 2020
Kyle J. Morgan holds a Ph.D. in Political Science and teaches courses on Elections and Participation, Constitutional Law, and Judicial Politics. His research focuses on the intersection of public opinion and attitudes towards the Supreme Court. The views expressed here are his own.
Immediately after the sad news of Justice Ruth Bader Ginsburg’s death, the discussion of filling the vacancy emerged. I am not here to talk about the hypocrisy of the Republicans in wanting to fill the seat, nor to predict if McConnell has the votes to fill the vacancy, or not. Instead, I want to push back and ground some of the discussion among those on the left for Court packing. This is the idea that we should add (or pack) the Court with several new appointments. Court packing is not a new idea. FDR famously threatened, and then failed, to pack the Court in 1932. My point in this article is not to say we should not fight right now to prevent an appointment, nor is it to say that Court reform should not be on the table or that the desire for Court packing is philosophically wrong. Instead I want to lay out an argument based on the evidence for what can be done, because if this whole disaster has shown us anything it is that something must be done.
The Supreme Court, despite handing down decisions that have angered both Democrats and Republicans, consistently is viewed as the most trusted institution of our government. 58% of respondents the last time Gallup asked this question (June 2020) said they approved of the way the Supreme Court was handling its job.1
Compare that to the most recent Gallup data on Congress (July 2020) which found that Congress had an approval level of only 18%, and 41% of Americans approved of President Trump’s job.2 While the Supreme Court’s approval may fluctuate, even at its lowest points in the last 20 years where only 42% approved of the Court’s handling of its job, this was still higher than Congress’ highest level of approval in 20 years which occurred during April and May of 2020 where it hit 30% and 31% respectively.
Compare that again to President Trump’s approval ratings which peaked at 49% several times between January and May of 2020.3 The point here is simply that Americans like the Supreme Court, they dislike Congress, and they like co-partisan presidents and dislike those from the opposite party.
Why does this matter? Well, among the world of scholars that study the Supreme Court and public opinion of the Supreme Court, the consensus is that that the Supreme Court is viewed as a highly “legitimate” institution. Legitimacy in this world has been defined by Yale Law School’s Dr. Tom Tyler as “…a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just.”4 Scholars (see the work of Dr. James Gibson and his army of co-authors) have applied this definition to the study of the U.S. Supreme Court and found consistency that the public views the Supreme Court as a legitimate. Further, this line of research has consistently found that support for, or disagreement with, specific decisions does NOT undermine the Court’s legitimacy. According to research done by Gibson, Caldeira, and Spence the infamously partisan 2000 decision in Bush v. Gore did not harm evaluations of the Court’s legitimacy.
These high levels of trust and belief in the Court’s legitimacy are why a purely partisan Court packing plan are unlikely to be successful. Americans like the Court, they almost universally dislike Congress, and support for the Presidency is tied to partisanship. For the most unpopular branch and a hypothetical President Biden, who would be disapproved of by most Republicans, to launch a clearly partisan attack on the Court would be doomed to fail. This does not mean they would be wrong in doing so, but it strategically doesn’t make sense. While many voters see the Court as political, there is a myth of legality around the Court, and they do not like the politicization of the Court. Democrats engaging in a partisan “tit for tat” Court packing plan would be seen as just the type of politicization that voters dislike. While Democrats would not be wrong to do so, this strategy would most likely be seen as the type of partisan gamesmanship that voters dislike and further it would be done as an affront to the institution they hold in high regard.
Further, voters’ belief in the myths around the Court, while they have been shaken somewhat in recent years, are deep seated. Voters like the Court, they dislike when it is perceived as political. To pack the Court in a pure partisan fashion would trigger both partisan opposition to the policy and the myth of legality around the Court. By triggering both our deeply rooted partisan biases and the stories we’ve been told since grade school that the Court is “different” and that it resolves cases of “law not politics” I see a straight partisan Court packing plan as something the public would not stomach. History also provides a potentially overused and overstated example, that is none the less useful to reference.
Amid the Great Depression and presented with a Court that thwarted many of his policies to address the country’s economic disaster, FDR was unable to pass a Court packing plan. This is the same FDR who (even if we take polling data at that time with a HUGE grain of salt) had an average approval rating of 63%5 and was elected President three times. In part many scholars attribute the failure of his Court packing plan to public backlash, voters just didn’t like the overt political nature of the plan, even if the Court was thwarting policies to address the Great Depression and it was coming from a popular President. All of that being said, the reality is that it is unlikely that a hypothetical President Biden would be able to do so in the current partisan political climate.
If partisan Court packing is off the table, then what is the solution? I’m going to propose two paths; one a Court packing proposal that may be viable and the other focuses on regular old politics and elections. Before he became the milk-toast bane of progressives, Pete Buttigeig came out with some radical proposals to address structural failures of our political system, including a Court reform plan. This plan, given how it is structured and could be framed to the public, I believe is more viable. Buttigeig proposed that the Democrats and Republicans each get five Justices of their parties’ choice. In addition, there would be five other nominees that would be nominated and confirmed by the current process with the additional hurdle that they would also require unanimous approval by the sitting justices as well. This proposal would require a constitutional amendment (a high hurdle that in reality casts doubt on this plan I acknowledge), but it is one that is defensible. Americans of all political stripes believe that the Court gets too involved in politics, and there is also agreement that we need better ways of controlling the Court. This plan remedies the ideological imbalance on the Court while at the same time “depoliticizing the Court” by taking it off the table as a weapon for both sides. This appeal to “fairness” is one that enough voters may find more appealing that a straight partisan assault on their most beloved institution.
So, what else should we be doing? While Democrats saber rattling about Court reform, and packing, is legitimate in the current moment, the reality is that we need to look beyond the Court. We should be reflecting upon why one small Jewish woman is so significant to both Democrats and Republicans. Republicans should be reflecting upon why their agenda’s future depends upon replacing RBG and the use of Courts rather than the elected branches and Democrats should reflect upon why the future of the rights and liberties we hold so dear rested upon the tiny shoulders of RBG instead of through the ballot box and popular mobilization. If we believe that we speak for the majority of the nation, why do we want to seat our power in nine (or more) unelected and largely unaccountable Justices? Maybe the Court has become too powerful and the death of RBG will get us to recon with that reality. The reality is that the Court has made us lazy. Instead of fighting for the policies and constitutional vision we want to see through political engagement and normal politics, we turn to the Courts. It is time for us to do the hard work of political and constitutional change, rather than depending upon the health of one woman.
In terms of pure political calculus, capturing the Court as a tool makes sense, but is it good for our democracy that instead of ruling by majority, we are ruled by whomever has the chance to capture the Court? We can discuss the constitution without the Court, we as a nation can reflect upon the vision of the Constitution we want to live under. The Court’s power of judicial review is not in the Constitution, it is a power that it gave itself, and they do not hold monopoly on constitutional interpretation. All our elected officials are sworn to uphold the Constitution, not just members of the Judiciary, and we should expect that our legislators to engage with the constitution as well. We can take the constitution back from the Courts. We can advance our vision of the Constitution through voters and the individuals we send to Washington and State Houses across the country. If the Court wants to come with us on that vision they are welcome to join, but we do not need to let them hold us back, and if they threaten to do so we have means available to respond to that. We are a nation that rests power with “the people”, not “the Justices”, it is time that we take that power back.
Follow The Standard @capemaystandard.Footnotes
- Tyler, T. R. (2006). Psychological perspectives on legitimacy and legitimation. Annual Review of Psychology, 57, 375–400. https://doi.org/10.1146/annurev.psych.57.102904.190038