The Supreme Court didn't always have nine justices, and that number is not set in the Constitution. The number of justices has been changed on multiple occasions throughout our nation's history, each time for a similarly partisan reason—namely to give one party more influence over the court's membership. And the first back and forth over the number of justices was a struggle between two of our most prominent Founding Father presidents.
Let me lay out a scenario: On Election Day, let's say the American people defeat an incumbent president, and give control over both houses of Congress to the party of the president-elect. In a lame-duck act that completely contradicts the very recently expressed will of the people, the incumbent's party then takes action clearly designed to limit the incoming president's ability to shape the Supreme Court going forward. Shortly after inauguration, the new president and his party take steps to reverse that action, steps that include changing the number of seats on the Supreme Court.
This may seem like a prediction of what might happen in the coming months, but what I've just described happened over two centuries ago.
A mere 19 days before the end of his presidency, John Adams signed into law the Judiciary Act of 1801, which reduced the number of Supreme Court seats from six to five—by mandating that the next vacancy go unfilled—and also created 16 new circuit court judgeships. These became known as the "midnight judges" because, as the legend goes, President Adams was processing and signing off on the appointments of these new judges all through his last night in the White House. Then, with his signature not yet dry on the parchment, he decided to make like a tree and got out of there.
An outraged Thomas Jefferson took office and set out to undo what Adams had done. The new Democratic-Republican majorities in Congress sent a bill to the new president's desk that repealed his Federalist predecessor's last-ditch attempt to control the future of the judiciary. Thus, Jefferson changed the number of seats on the Supreme Court back to six, and undid the creation of the new Adams judgeships. As well he should have.
This historical example reminds us that changing the number of seats on the Supreme Court requires only a simple act of Congress. In fact, that number was changed on five other occasions as well. As for why, political scientist J.R. Saylor wrote in the Baylor Law Review that the party in power enacted each of these changes in order to either "purge the Court of … justices making decisions objectionable to an incumbent of the White House or to a dominant party majority in Congress," or to "'pack' the Court in order that the policies of the government in power would be upheld as constitutional."
In an echo of our current situation, the most recent of these changes involved a reactionary president who went against the expressed will of the people. Southern white supremacist Democrat Andrew Johnson, an accidental president if ever there was one, had the opportunity to fill a Supreme Court vacancy in 1866, but the Republican Congress—the liberals of the day on racial issues—eliminated the open seat through legislation. Johnson was unable to fill the seat before leaving office. In 1869, after Republican Ulysses S. Grant—the pro-Reconstruction president whose administration destroyed the existing Ku Klux Klan—took office, his Republican allies added back the ninth seat in the name of democracy.
The 800-pound gorilla when it comes to the history of adding seats to the Supreme Court? Franklin Delano Roosevelt and his famous "court-packing" scheme, which, on the face of it, ended in failure when Congress rejected it. However, Roosevelt achieved his goal anyway, because Justice Owen Roberts—in the "switch in time that saved nine" (color me impressed if you know the source of that cliche)—changed his position on the constitutionality of New Deal economic legislation, including laws setting a minimum wage and the National Labor Relations Act. The switch, as law professor John Q. Barrett notes, "took the air out of the Court-packing balloon." Ultimately, FDR's threat of adding seats to the court rendered the action itself unnecessary.
That brings us to today, and the open seat on the Supreme Court held, until last week, by one of the most impressive people in American history, Ruth Bader Ginsburg. As a lawyer, she convinced SCOTUS that gender discrimination was unconstitutional before, some years later, joining the nation's highest court and continuing her fight for equality. Of course, the question of how and when to fill the seat held by Justice Ginsburg is directly connected to how and when the seat held by Justice Antonin Scalia was filled only a few years ago. For your reading pleasure, I'll give you the recap from Daily Kos' own Hunter.
When [Scalia] died in February of 2016, Senate Republicans discovered a heretofore unidentified, now-infamous caveat to President Barack Obama's constitutional powers: Black presidents aren't allowed to fill vacant Supreme Court seats during an election year. The Senate refused to even consider the nomination of Merrick Garland, who was put forward by Obama for the role; instead, the seat was simply left vacant for the duration of Obama's term. When Republican Trump was installed as president the next year, the Senate swiftly confirmed his own conservative nominee.
That nominee was Neil Gorsuch, and his seat is the one that was stolen. What Sen. Mitch McConnell did was the unjust act that broke the system. By comparison, a Democratic Senate confirmed Anthony Kennedy to the Supreme Court in February 1988, less than a year before Ronald Reagan's second term ended.
Yes, that Senate had previously rejected Reagan's first nominee, Robert Bork. Even now, supposedly reasonable Republican pundits like Ross Douthat and Bret Stephens still wrongly point to Bork's rejection as the event that kicked off the current back and forth on court nominations. They seem to forget that the Senate has said "no" to multiple other nominees, including two who were rejected in both 1969 and 1970 because of their ideologically extreme views—the same reason Bork was not approved. In Kennedy, Reagan still got a justice confirmed by a Senate controlled by the opposing party less than a year before a presidential election.
No, the clear act that crossed the Rubicon occurred in 2016. Never before had the party that controlled the Senate simply ignored a nomination made by a sitting president from the other party, and then held the seat open until they had won the presidency and could fill it themselves. People throw around the word "unprecedented," but it has a real meaning: something that has never been done before. It's also worth noting that the word "precedent" (Roe v. Wade is one that's in serious jeopardy right now) has great significance when we are talking about the Supreme Court.
McConnell's unprecedented actions created the McConnell Rule; Moscow Mitch claimed he was following a nonprecedent that he called the "Biden Rule," which was really just a 1992 speech then-Sen. Joe Biden gave on the Senate floor. While Biden did encourage then-President George H.W. Bush to wait to put forward a SCOTUS nominee until after that year's election, it was a speech about a hypothetical seat, and little more. Furthermore, Biden stated he had no problem with Bush nominating someone after Election Day if that hypothetical opening became a reality, and added that "action" on that nomination could proceed at that point.
For McConnell to claim Biden's speech justified his refusal to hold hearings for Garland was, in a nutshell, a flat-out lie. What McConnell did in 2016 did bears no resemblance to the remarks made by Biden in 1992—who was only one senator, by the way, and not even his party's leader at the time.
And now, in 2020, McConnell is changing the McConnell rule—completely violating it, actually. He blathered something about how this time really is different from 2016. According to McConnell's twisted logic, via the 2018 midterms, the American people chose Republicans to pick justices over the next two years. Never mind that only one-third of Senate seats were up for grabs—including only nine held by Republicans, compared to 26 seats held by members of the Democratic caucus, many running in states Trump had won two years earlier. I'll let Montana Sen. Jon Tester—a Democrat who won in one of those red states in 2018—respond: "They won a mandate in 2018? They lost the frickin' House. They're making excuses for something that they know is totally corrupt." The American people agree.
One of the more brilliant pieces I've seen recently comes from Stuart Thompson at The New York Times. He published an op-ed this week constructed entirely of statements that Republican senators made in 2016 to justify not considering the nomination of Merrick Garland. I'll share just a few.
Here's Texas Senator Ted Cruz: "For 80 years it has been the practice that the Senate has not confirmed any nomination made during an election year, and we shouldn't make an exception now." And Mitchy McTurtle himself: "The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be." Finally, here's Iowa's Joni Ernst—conveniently up for reelection this year, and locked in a race that looks very much like a toss-up: "And if the decision is made that we have a Democratic president, that's a decision we will live with."
And then there's Lindsey Graham.
"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination." pic.twitter.com/quD1K5j9pz
— Vanita Gupta (@vanitaguptaCR) September 19, 2020
As for Mitt Romney, he may not be a hypocrite on this matter, having not been a senator in 2016, but he's definitely a coward.
Are the actions taken by Trump, McConnell, and their Republican Senate lackeys within the rules laid out by the Constitution? Yes, they are. Nevertheless, this kind of rank hypocrisy—of Republicans doing one thing when it gives them more power, and then doing literally the opposite thing when that would give them even more power—represents an abuse that cannot go unaddressed in a healthy democracy.
Starting with the election of 2000, and including most of our national elections since then, the Republicans have been the minority party as Democrats have consistently won more popular support. Yet, because of the vagaries of the electoral college, the overrepresentation of rural and white voters in our Senate (Americans of color are more disproportionately underrepresented now than at any point since 1870), and the extreme gerrymandering opportunity seized upon by Republicans after they did well in a lower-turnout midterm election in 2010, the GOP has continued to enjoy a degree of power that far exceeds the level of support they earned from American voters.
If The Man Who Lost The Popular Vote fills the seat that belonged to Justice Ginsburg, there will be five conservative judges on our highest court, all appointed by men who became president after getting fewer votes than their Democratic opponents. That's enough by itself to provide a majority decision on any case brought before the Court. Them's the rules, as they say. Trump himself justified his plans along similarly thoughtful lines.
"When you have the votes, you can sort of do what you want," Trump tells Fox of comparisons to Obama/Garland.
— Alex Seitz-Wald (@aseitzwald) September 21, 2020
There is a point, however, at which the rule of a numerical minority over the majority becomes incompatible with democracy. It becomes illegitimate. Although that's reason enough to act, if Democrats win the White House and Senate and add seats to the Supreme Court, they will merely be doing the same thing Republicans did: playing by the rules and exercising the power the Constitution provides them. After all, when you have the votes, you can sort of do what you want. Looking at it another way, at some point, after a bully pushes you around long enough, you're justified in fighting back.
If Trump and McConnell get their way, and Democrats then win big in November, they will have no choice but to stand up for democracy by adding two seats to balance the Supreme Court. Even this would not fully redress Republican misdeeds—which would require replacing Justice Gorsuch with Merrick Garland as well—but it would be something they could do by eliminating the filibuster and simply enacting legislation. Furthermore, I believe a majority of the American people could be convinced to support such a step, recognizing it as a proportional response. As Paul Waldman argued in The Washington Post, the Democrats can absolutely justify such actions by making "Look what you made us do" their "guiding mantra."
But maybe it doesn't have to come to that. It would be better for our country if it didn't, if the two parties could figure out a better alternative. The best outcome would be to use this opportunity to remember the concept of mutually assured destruction, and engage in disarmament.
If McConnell believes that Biden and the Democrats will win, and would act on expanding the Court—an action that would surely leave Republicans vowing to do the same if they get the opportunity down the road—would he make a deal on a major reform to the way Supreme Court justices are chosen, and how long they serve? Reasonable reform plans have been proposed involving term limits that, for example, would have one justice retire and be replaced every two years. If Republicans don't hold a vote on Trump's nominee before the election, and Democrats win the White House and Senate, Democratic Senate Minority (for now) Leader Chuck Schumer's leverage would only increase.
Such a deal, so long as it included holding off on filling the existing open seat, would be the best outcome. It would provide a way out of the escalating wars between the parties over Supreme Court nominations, wars that would only get worse if that seat were filled by Trump and McConnell's Senate, and Democrats were forced to take appropriate actions in response.
I highly doubt this kind of comprehensive reform will be enacted, largely because Republicans have always operated from one basic principle: What can we do that will give us the most power? And, as I noted Tuesday on France 24, there's really nothing to stop them from moving forward.
Perhaps if Democrats can convince McConnell & Co. that exercising the power they already have before January will cost them more power in the long run, a deal can be struck. Either way, the history lesson from our founders teaches us that the number of Supreme Court justices has, right from the start of our Republic, been subject to change, based on who currently holds the power.
If—and I truly hope for the sake of our system of democracy they do not—Republicans abuse the power they currently hold, and then lose the Senate in November along with the presidency, then Democrats must, in the name of democracy, undo that abuse. In doing so, Democrats would not be setting forth on a radically new path—no matter how loudly hypocrites like McConnell and Lindsey Graham might squeal. Today's Democrats would simply be following the precedent created by their party's founder when he undid a lame-duck attempt to subvert the will of the people.
And they'd be right to do it.
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)