Democrats likely to pack Supreme Court if they take power

Democrats likely to pack Supreme Court if they take power
Ruth Bader Ginsburg (Image: Wikipedia)

Democrats are likely to pack the Supreme Court with progressives when they take power, by expanding the size of the Supreme Court. That’s true regardless of whether President Trump manages to fill the vacancy on the Supreme Court created by the recent death of Justice Ruth Bader Ginsburg.

As NPR notes, even before Justice Ginsburg’s death, several Democratic Senators “said they were open to the idea” of packing the Supreme Court, “including Sens. Cory Booker of New Jersey, Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota, Elizabeth Warren of Massachusetts and Kamala Harris of California, now the vice presidential nominee.”

In 2016, progressives argued that the Senate has a duty to fill vacancies on the Supreme Court, and that its refusal to confirm President Obama’s nominee was a reason for Democrats to pack the Court in the future. Now, they argue that the Senate has a duty to keep Justice Ginsburg’s seat vacant, and that filling it would be yet another reason to pack the Supreme Court.

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The NPR story quotes progressive academics making both of these inconsistent arguments simultaneously:

To University of Chicago law professor Brian Leiter, the current Supreme Court makeup is already evidence of court packing. “The Republicans packed the court after Scalia’s death when they denied President Obama his choice,” Leiter told NPR. “Now they want to pack it further and more consequentially, given that they would appoint a conservative to replace the liberal Ginsburg…The Democrats would be crazy not to do their own court packing.”

Professor Leiter’s advice to pack the court is being heeded by some Democratic Senators. Senator Ed Markey of Massachusetts wrote that if Trump fills the vacancy, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

As NPR notes,

Other academics agree that Democratic court packing is likely. “If the GOP goes forward with trying to fill the seat this year … I think there is a substantial likelihood (at least 50% or more) that the Democrats will respond with court-packing, the next time they get a chance to do so,” George Mason University law professor Ilya Somin said.

Indeed, Democrats will likely pack the Supreme Court when they take power, regardless of whether the GOP fills the seat.

As Professor Josh Blackman notes, “For some time, there has been a poorly-kept secret in Washington: as soon as the Democrats take power, they will make four power moves,” including packing the Supreme Court. “To date, most prudent Democrats have refused to discuss these four moves aloud,” says Blackman, who joined other academics in publicly opposing Trump in 2016.

He says the Democrats will take the following four steps (regardless of whether Republicans fill the vacancy on the Supreme Court this year):

(1) Eliminate the filibuster, because that is necessary to pack the Supreme Court. The filibuster requires 60 votes, rather than 51 votes, to pass certain kinds of legislation. Legislation to expand the size of the Supreme Court would never get 60 votes, so the filibuster has to be eliminated before progressives can pack the Supreme Court.

(2) Pack the Supreme Court, by expanding it to include more progressive justices.

(3) Expand the lower courts to pack them with progressive judges.

(4) Expand the Senate to include more progressive Senators, by granting statehood to progressive enclaves like the District of Columbia.

Creating new progressive states will help the Democrats retain control of the Senate and the Presidency, even if there is a public backlash to Democrats packing the Court or passing controversial progressive legislation.

Progressives have argued in publications such as the Harvard Law Review that Democrats should create as many as 127 new states out of progressive territories and federal enclaves, to give Democrats firm control of the U.S. Senate.

Joe Biden has not yet endorsed packing the Supreme Court. He has said it is a “legitimate question” to raise, although one he’s “not going to answer” now during the campaign.

Earlier this year, Biden said the filibuster should be abolished if it stands in the way of “systemic change.”

Biden may need to abolish the filibuster to get his most left-leaning policies enacted. As the progressive Peter Beinart put it in The Atlantic, Biden has embraced “an agenda that is further to the left than that of any Democratic nominee in decades.”

Obama was able to overcome filibusters by getting moderate Republicans to vote in favor of his stimulus package and his financial reform legislation. But it is hard to imagine even those Republicans voting for Biden’s huge spending increases.

Biden has proposed vastly more spending than any past Democratic nominee. He supports $3 trillion in new taxes and $11 trillion in new spending, according to Reason Magazine, which is endorsing neither Biden nor Trump. By contrast, Hillary Clinton supported only $1.4 trillion in new taxes in 2016, and Barack Obama said in 2008 that he would try to implement a “net spending cut.”

Biden supports far-reaching changes to American labor and employment law, which cannot pass without first abolishing the filibuster.

For example, he supports the BE HEARD Act, which would subject even the smallest employers to lawsuits for unlimited punitive damages and lawyers’ fees, and an expansive definition of “harassment” that requires them to police speech even outside the workplace. The BE HEARD Act also includes pay regulations that the Republicans already filibustered in 2012 because they considered them too burdensome to employers.

Biden also has supported California’s AB5, which curbed freelance work and eliminated the positions of thousands of independent contractors. He wants to implement it nationally.

Biden supports giving states a financial incentive to reduce prison populations, which could increase the crime rate over what it would otherwise be. Such proposals have almost no Republican support, and even some moderate Democrats oppose them.

Biden’s $11 trillion in new spending doesn’t include the cost of reparations, which he tentatively supports, but wants to study first. Newsweek reported that “Biden said he was in favor of paying slavery reparations” if “studies found direct cash payments to be a viable option.” As the New York Times notes, that “could cost several trillion dollars.”

Paying reparations might also require packing the Supreme Court. The current Supreme Court would probably strike down race-based reparations as unconstitutional. By contrast, if the Supreme Court were packed with progressive justices, it would uphold them.

A past, more liberal Supreme Court upheld federal racial preferences, so progressive justices would also uphold Biden’s proposed racial set-asides in government contracts.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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