Verbum Ultimum: Don't Pack the Court

Political maneuvers will only undermine the judiciary.

by THE DARTMOUTH EDITORIAL BOARD | 5/3/19 2:10am

Partisan rancor and gamesmanship have spilled over into the nation’s highest court. In the past two years, the Republican Party has secured two conservative justices, Neil Gorsuch and Brett Kavanaugh, both of whom were confirmed after Senate Republicans deployed the so-called nuclear option in 2017, an amendment to Senate rules that lowered the votes needed for cloture from 60 to a simple majority vote. Democrats, now limited by time constraints on floor debates, have decried the processes for both confirmations as unfair, and with good cause. But the solutions proposed by some on the left — which amount to court packing — are at least as threatening to the institution of the Supreme Court. And that should worry us all.

Court packing has recently come into prominence on the left. Some scholars have proposed abolishing lifetime judicial appointments and imposing term limits. Some Democratic 2020 hopefuls oppose altering the court, but at least eight of them have expressed openness to adding more seats to the bench. Sen. Kirsten Gillibrand ’88 is one such candidate who takes court packing seriously. In a recent podcast interview, she said that court packing was an “interesting idea,” and that she would “need to think more about it.” Another Dartmouth alumnus, Neal Katyal ’91, the former acting U.S. Solicitor General, anticipated such bold proposals last August while presenting a lecture at the College. “I think the Democrats will feel, and not without some justification,” he predicted, “that there should be a penalty paid when there’s these types of games being played with a Supreme Court seat.”

Mentioning court packing might score points with some voters now. But presidential hopefuls should tread lightly before proposing such a potentially dangerous change — a change that threatens the judiciary’s independence and legitimacy. In the 1930s, President Franklin Roosevelt infamously attempted to pack the court in order to support his New Deal reforms. But members of his own party foiled the plan and denounced it as pure political maneuvering. Current attempts at court packing deserve the same denunciation. No policy goal is worth more than the integrity of the court.  

Perhaps packing the court would undo the current conservative majority. President Trump’s choice to appoint two justices on the far right of the court was a partisan move, but the proper response is not thinly-veiled partisan maneuvering. Americans’ faith in the Supreme Court has been declining for years as partisanship slips its way into what should remain an apolitical branch of government. This shows up too in confirmation votes. In past years, the Senate frequently offered Supreme Court nominees near-unanimous support; now, confirmation hearings tend to proceed along party lines. This politicization of the court is a dangerous trend, one that threatens the rule of law and the integrity of one of America’s core institutions. If large numbers of Americans come to view the court as a biased partisan instrument, judicial decisions will no longer carry weight; that threatens the foundations of the constitutional order. Partisanship in the court nomination process has already strained trust in the court. Court packing takes that partisanship to an even more blatant extreme. 

That erosion of trust affects us at Dartmouth. College students take a dim view of American institutions: In a recent poll, just 33 percent expressed confidence in the court system, and only 24 percent expressed confidence in the federal government. Yet those institutions, especially the Supreme Court, have a track record of accomplishment. They’ve made mistakes — think of Dred Scott — but they’ve also defended racial equality, rejected discrimination and defended civil liberties. The Supreme Court is an institution worth preserving.

If we’re to maintain the court’s legitimacy, we must reject the sort of partisanship that caused its issues in the first place. As students, we recognize that our generation maintains a deep pessimism about the court and other governmental institutions; but that’s all the more reason for us to reject defeatist ideas like court packing. Partisanship by an older generation has eroded trust in the court, and that partisanship won’t help us restore Americans’ faith in the judicial system. So let’s reject court packing and take a principled stand in favor of the judicial system. That might not generate buzz on the campaign trail, but it will be what’s best for our nation.

The editorial board consists of opinion staff columnists, the opinion editors, the production executive editor and the editor-in-chief.