Packing the Supreme Court may turn justice into a political game

Some Democrats in Congress are ignoring the creation by President Biden of an expert panel to consider the pros and cons of packing the Supreme Court, and are introducing legislation to add four justices. Such a bill, if enacted by Congress and signed into law, would destroy the credibility of the high court as a neutral arbiter of justice and as a check and balance against the two political branches of our government. It would turn the Supreme Court into a political football to be tossed about by whichever party temporarily controls Congress and the White House.

Today, Democrats want to add four justices of their own. But tomorrow, Republicans might want to add six justices of their own. The dangerous precedent set by Democrats has no limiting principle. If the process of adding justices persists, the bench needs to be expanded to fit dozens of robed political nominees who will see their role as serving the party that appointed them rather than supporting the rule of law.

It is unlikely that this power grab will succeed in the near future, as not all Democrats support this effort, nor is it likely that Biden would sign a bill that undercuts his creation of a study commission. Indeed, House Speaker Nancy Pelosi said she will wait until the panel makes its recommendations before letting the issue come to a vote. She has called the court packing proposal debatable and has said that changing circumstances may justify it. Despite the unlikelihood of immediate passage, the mere introduction of such legislation threatens neutrality of the judiciary.

It is not as if the fault for this injection of politics into the Supreme Court lies solely with the Democrats. The partisan refusal of Senate Republicans to allow the nomination by President Obama of Judge Merrick Garland to be considered in 2016 was inexcusable. The Republicans stole a Supreme Court seat from Democrats, and then completed the theft by allowing the nomination by President Trump of Judge Amy Coney Barrett to be sent for confirmation on the eve of the 2020 election. However, two wrongs never make a right, and packing the Supreme Court would cause more serious and enduring harm than wrongly stealing a single seat.

Not only would adding more justices to the Supreme Court endanger its critical institutional integrity, it might also threaten our most fundamental liberties, namely freedom of speech and due process of law. If Biden were to get four new appointments immediately, and likely a fifth if and when Justice Stephen Breyer retires, then there would be enormous pressure from the radical wing of the party to nominate progressives, rather than liberals and civil libertarians. The same extremists who want to pack the high court now would demand that Biden nominate their kind of radical jurists with little tolerance for dissent and due process.

These progressives demand that their ideology be enacted now. If you know the truth, why do you need dissenting views? Why do you need due process? These are merely devices designed by our white patriarchal society to silence the demands of the disenfranchised, or so goes their argument. Were the Supreme Court to be filled by such repressives, it could set back liberty in this country for generations.

This is not to say that no structural changes to the Supreme Court are warranted. I favor fixed terms for all judges. When our Constitution was written, average life expectancy was around 50 years, so justices tended to serve less than 20 years. Now justices serve over 30 years. If Barrett lives and serves as long as Justice Ruth Bader Ginsburg, then she would be on the bench for 35 years. That is too long for any officeholder in any democracy. Even popes and kings, save for a few notable leaders like Queen Elizabeth, have tended to serve shorter terms.

If term limits were imposed, they would have to be prospective, which means applicable only to justices appointed after the legislation or the amendment to the Constitution were enacted. This kind of prospective application could end up helping Republicans and hurting Democrats, because it would be inapplicable to the six sitting justices appointed by Republicans, but would be applicable to the nominees of Biden. So it is unlikely that Democrats would push this proposal now.

The Supreme Court has been wounded by divisive politics, but it is not broken. Packing it would break it, but term limits would not. But partisan considerations will likely end up leaving matters regarding the Supreme Court as they are. This is not necessarily true of the lower federal courts, which actually decide the vast majority of federal cases.

The commission will probably recommend, and the White House and Congress will probably enact, legislation packing the lower courts. This would add large numbers of new appellate and district court judges who will be appointed and confirmed by the Democrats. This may compromise the neutrality of our judiciary, but much less visibly and permanently than packing the Supreme Court on an extreme partisan basis.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You will find him on Twitter @AlanDersh.