Justice Ruth Bader Ginsburg’s death, less than two months before the election, was a loss that reverberated deeply throughout the United States and, indeed, the world. It triggered what appeared to be an inevitable, and potentially long-lasting conservative majority on the US Supreme Court. As explored in a recent article, Ricki-Lee Gerbrandt explored the options available to mitigate the perceived politicization of the court. Now, over 60 days into Biden’s presidency, she spoke with Mark Tushnet, William Nelson Cromwell Professor of Law, Emeritus at Harvard Law School, and author of Taking Back the Constitution (2020), about the different scenarios that could play out around court reform.
RLG: Can you explain (to an audience of Canadian lawyers) the concept of packing the U.S. Supreme Court and where the idea came from?
Mark Tushnet: Court-packing, or court expansion, is possible because the U.S. Constitution leaves it up to Congress to set the size of the Supreme Court. The numbers have varied over time, from five to ten, with the current size – nine – having been established in the late 1860s.
MT: Historically, changes in the Court’s size have resulted from a combination of “good government” concerns, for example about increasing caseloads, with political considerations, which have mostly affected the timing of when composition changes occur.
The most recent major push to increase the court’s size occurred in 1937, when Franklin D. Roosevelt pushed for adding six justices to the court. He was responding to a series of 5-4 court decisions that he believed threatened core elements of his legislative agenda. The court-packing plan failed, although it came quite close to succeeding (and might have passed but for the sudden death of a key legislator who had been promised a seat on the expanded court).
RLG: Why has the idea of court-packing erupted now? What do advocates think it might solve?
MT: Court-packing has returned to the policy agenda for a combination of reasons. (1) Although Democrats have elected presidents regularly over the past decades, they have not had the opportunities Republicans have had to appoint justices. The result is an imbalance between the court’s composition (in terms of the nominating president’s party) and the results of presidential elections. (2) Democrats are especially motivated by what they regard as unfair but successful efforts by President Donald Trump to pack the Supreme Court himself, first when Republicans blocked consideration of Merrick Garland’s nomination to the court (to replace conservative justice Antonin Scalia after his death), and then rushed through the nomination of Amy Coney Barrett to fill the seat opened up by the death of liberal justice Ruth Bader Ginsburg. This has resulted, in their view, in a strongly conservative court with a 6-3 conservative majority that, again, doesn’t match the results of recent elections.
RLG: What is the legal process that it would take to pack the court, and can it actually be done right now?
MT: The court’s size can be increased by the enactment of an ordinary statute. Formally speaking, that requires only a majority in both houses of Congress. The U.S. Senate, though, has a rule allowing “extended debate” – more commonly called the filibuster – that has become a de facto requirement that all legislation not related to the budget have support from 60 Senators. With the Senate divided evenly between Democrats and Republicans, there appears to be no chance today for the passage of Court-expansion legislation.
RLG: The Supreme Court is a respected institution in America (not to mention globally). Will packing the court harm its legitimacy?
MT: Democrats who advocate for court expansion argue that doing so will actually increase the Court’s legitimacy by restoring balance to the Court. Opponents argue, first, that Court expansion motivated by a desire to change the partisan balance on the Court communicates the message that the Court’s decisions are “merely” political ones, and that that message undermines legitimacy, and second, that Court expansion invites retaliation when it next becomes possible, and that making the Court a political football also undermines its legitimacy.
RLG: You coined the term “constitutional hardball.” What does that mean, and how is it relevant to court-packing?
MT: I defined “constitutional hardball” as a set of practices clearly (or arguably) allowed by the written Constitution and its interpretations, but inconsistent with “taken for granted” background assumptions that typically guide legislators and other political actors. Opponents describe court-packing as a “hardball” tactic because ever since the defeat of Roosevelt’s court-packing plan political actors have assumed that the court’s size should not be changed simply to change its partisan composition (though “good government”-based changes are presumably within bounds).
RLG: Canadian Supreme Court Justice Rosalie Abella will retire on July 1—her 75th birthday, the mandatory retirement age in Canada. Would a mandatory retirement age for U.S. Supreme Court judges help solve some of the issues? Could a mandatory retirement age even be implemented?
MT: Currently the U.S. Constitution gives judges tenure “during good behavior,” which has been understood to mean that Congress can’t impose a mandatory retirement age. At the moment there are few advocates for imposing such a requirement by amending the Constitution; most attention has been focused in limiting the term of a justice, typically to 18 years.
RLG: Do the supreme courts in other countries have issues with political leanings of the judiciary? Are there any solutions that other countries have found, and could any of those be implemented in the U.S.?
MT: Many nations have experienced problems with political influences on the composition of their highest courts, or at least widespread public suspicion about such influences. Currently the preferred solution appears to be nomination or appointment by a judicial nominating commission with multiparty membership and strong representation from NGOs.
RLG: What, in your view, is the best option for reforming the U.S. Supreme Court?
MT: My personal preference would be to expand the court’s size, at least temporarily. A back-up position is the imposition of term limits, which I believe can be done by a carefully written statute (and can have some immediate effects if accompanied by a temporary expansion of the court’s size).
RLG: Do you think President Biden and Congress will actually consider packing the cCourt? What about any other court reform options?
MT: I doubt that court-packing is in the cards, but I do think that there will be some movement on the issue of term limits for federal judges.
RLG: As a constitutional law scholar, what is your hope for the Supreme Court and its impact on law and society?
MT: My personal view is that the Supreme Court has come to play too large a role in U.S. politics, and that the ultimate goals should be to scale back its importance in our politics (which might be accomplished by diminishing its legitimacy as an actor in politics).
This interview was edited and condensed for publication.