Court-packing is not the answer

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WASHINGTON - The Supreme Court’s conservative supermajority shouldn’t exist. President Barack Obama should have been able to fill Justice Antonin Scalia’s seat, and President Joe Biden should have been allowed to name Justice Ruth Bader Ginsburg’s replacement, leaving the court with a 5-to-4 liberal majority instead of the current 6-to-3 conservative-dominated court.

The handling of each vacancy -- one nomination cut off far too soon in the political cycle, the other hustled through far too late -- gravely violated norms. It is impossible to understand them as anything but a raw exercise of political muscle on the part of Senate Republicans.

Meantime, the newly enhanced majority has aggressively asserted control, with a ruling in the Texas abortion case so radical that Chief Justice John G. Roberts Jr. was driven to join the liberals in dissent, and judging from oral arguments in the Mississippi abortion case, the prospect of even more constitutional upheaval ahead.

So, if the court’s current membership is in place illegitimately and is behaving in a dangerous, even radical, manner, why isn’t it justified -- why isn’t it necessary -- to expand the size of the court in response? This is a fair question, one that’s getting harder to answer by the day.

The dodgy response is that court expansion -- court-packing, to use the more inflammatory term -- isn’t going to happen in this closely divided Senate; therefore, why grapple with it? Given how much I’ve written recently about the dangers posed by this court, I think readers deserve a fuller explanation. And the more this majority reveals itself, the more incumbent it becomes on instinctive institutionalists like me to reexamine our reluctance to adopt this extreme approach.

“A Supreme Court that has been effectively packed by one party will remain packed into the indefinite future, with serious consequences to our democracy,” Harvard Law School professor emeritus Laurence H. Tribe and former federal judge Nancy Gertner, both members of Biden’s Supreme Court commission, wrote in a Post op-ed explaining how they had shifted in favor of expanding the size of the court. “This is a uniquely perilous moment that demands a unique response.”

But expanding the court would be like destroying the village in an effort to save it -- and, I fear, just as delusional. The court wouldn’t be saved -- it would be destroyed, in a tit-for-tat cycle of partisan expansion.

Imagine increasing the size of the court to 11 to offset the two seats that should have gone to a Democratic president, which would still retain a 6-to-5 Republican majority, or, more logically, to 13, because that would truly return the situation to where it should have been: 7 to 6 in favor of Democrats.

Why would expansion stop there? Almost certainly, it would not. Once a Republican president and Republican Congress are in power, the pattern would continue, with the party in charge tempted to further stack the court if its balance were not to the party’s liking or when the court issued decisions with which it disagreed. The court would grow to ever more unwieldy proportions -- one estimate concluded that the court would likely increase to 23 over the next 50 years.

Meanwhile, the court’s independence and its legitimacy, the fundamental sources of its power, would be irrevocably eroded.

Balanced against that uncertainty is the conviction that court expansion would not end well, for the court or the country. Leaving the court at nine justices is not a happily-ever-after ending. It is just the less bad choice.

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Ruth Marcus’ email address is ruthmarcus@washpost.com.

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