Pete Buttigieg, the mayor of South Bend, Indiana and Democratic presidential hopeful, made headlines with his plan to pack the Supreme Court. While adding new justices to the court is a good concept, Buttigieg’s proposal is both naive and incredibly dangerous.
In essence, Buttigieg would expand the court to 15 seats from its present nine, but would only appoint one new judge (presumably a liberal one). He would then have the court’s five conservatives and five liberals appoint five “apolitical” judges.
The most immediate problem with this process is, well, it’s unconstitutional. Justices are appointed by the President with the advice and consent of the Senate. Even if every president inherently agreed to nominate those recommended by the partisan justices, Buttigieg essentially guts the Senate’s role to advise and consent by grinding the entire judicial branch to a halt if the partisan Justices are not acquiesced.
And that’s just the most obvious problem. Even assuming a constitutional amendment could be passed to enact the plan, it’s still a bad plan. Maybe it was better when the most salient issue Buttigieg campaigned on was the hexadecimal color codes of his website.
Although, as the Fresh Prince of Bel-Air quote goes, “he’s a little confused, but he’s got the spirit.”
We Do Need To Pack the Court
To be clear, the idea of expanding the court to fifteen Justices has merit. Law professors and even former Attorneys General have called for court-packing, and it rightly ought to be a centerpiece of Democrats’ 2020 strategy. There are great reasons to pack the court.
Mitch McConnell might be chief among them. His historic obstruction to prevent the appointment of Merrick Garland in the last year of the Obama Administration was brought into sharp focus again when he promised that should the same situation occur before the 2020 Election, consistency be damned the seat would be filled by a Trump jurist.
This isn’t even the first time Democrats have sought to measure the power of an ardently conservative Court by expanding the roster.
President Franklin Roosevelt managed to win support from the Court in the 1930s just applying the pressure of expanding the bench. The 1936 flip of Justice Owen Roberts from the Court’s conservative bloc to join its liberals in West Coast Hotel v. Parrish has been called “the switch in time to save nine,” referring to the nine seats of the Supreme Court.
Even the threat to pack the court can be valuable leverage, and actually doing so couldn’t hurt. The Supreme Court is the most powerful institution in American government by far and does not face the judgment of elections or needing to be renominated and reconfirmed thanks to lifetime appointment. Distribution of that power only fosters democracy.
But Buttigieg’s approach is fundamentally wrong, based more on how the Court ought to be than how it actually is.
There Is No Such Thing as an Apolitical Justice
West Coast Hotel illustrates another problem with Buttigieg’s idea, and this illustrates clearly his naivety: there are no apolitical judges. As long ago as 1936, the switch of Owen was blasted by the dissent in West Coast Hotel as being cravenly political.
West Coast Hotel is hardly an island. The Court has never really been an apolitical institution. That myth dates back to the moment the ink dried on the Constitution – fundamentally, parties are born of political ideologies and those ideologies shape how we interpret the Constitution, which means that Constitutional interpretation is in essence a partisan proposition.
And honestly, we like it that way. The Supreme Court is less an institution of dispassionate law and more an institution of determining values from that law. As a result, the Court broadly has a history of enacting a moral justice by safeguarding American values even where law is not exactly clear. The Right to Privacy, for instance, is a Constitutional right protected by the Court, despite never explicitly being named in the Constitution. In general, America likes this sort of thing.
What we don’t like is the other side of the ‘political court’ coin. Instances like Justice Brett Kavanaugh blaming the Democrats, and in particular the Clinton family, for the drama surrounding the sexual assault legations he faced during his confirmation are nakedly partisan. Even this kind of thing isn’t new, though — Bush v. Gore in 2000 was probably the most partisan Supreme Court decision in history.
Apolitical Justices are a myth. Buttigieg might as well have called for the partisan judges to appoint five pixies to the bench. And failure to confirm those pixies comes with dire consequences.
The Court: A New Kind of Shutdown Fight
In recent years, threats of shutting down the federal government as part of partisan battle have been increasingly common. Buttigieg adds a new kind of shutdown to the political landscape: judicial shutdowns.
The apolitical justices would serve one-year terms, and not be eligible to become a Justice again. Ignoring the problems with term limits and the fact that the Supreme Court would go through judges like teachers in Harry Potter; that’s five people per year that need to be selected by ten bitterly divided people, approved by a President and confirmed by the Senate every single year for the remainder of the Republic.
Failing any of these steps in time means the Supreme Court would not be able to hear cases for the next year. Which means every branch of government has a new way to fundamentally break the function of American democracy.
For decades, the Supreme Court has been hearing fewer and fewer cases. Still, the cases it does hear are massively important. From gay rights to Obamacare to Citizens’ United to digital privacy, Supreme Court cases are essential in American life, especially to understanding the nature of our democracy and rights. Putting the breaks on this process for political purposes is a dangerous bid.
Especially when time matters. The aforementioned Bush v. Gore and the recent questions about the 2020 Census and redistricting all had very real time limits in place. And there can be human costs when these kinds of tight timelines are thrown by the wayside if a case like Trump’s family separation policy went before a Court that the Buttigieg plan stopped from sitting.
To think that the Supreme Court wouldn’t allow its institution to be used like that would be nice, though we know that the sitting Justices today aren’t above playing politics from the bench. Even if they were, the Senate or President could hold up the appointments in order to extract favorable rulings from the Court, or concessions from the other party.
It’s a Bad Idea, Pete
Effectively, Buttigieg proposes a whole new way to ruin the judiciary, not a real way to reform it. In so doing, he’s shown a clearly naive perception of the Court and overly optimistic impression of Congress and the President.
Even if a constitutional amendment to enact Mayor Pete’s plan were to be brought forward, in the unlikely event it passed it would create entirely new problems for the judiciary while effectively solving none of the current ones.
But if what you want is to appease people who want to pack the court without alienating centrists who want to believe in the fantasy of a court above politics, Pete Buttigieg’s plan suddenly sounds brilliant. It’s a great way to campaign, it’s just a horrible way to govern.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.
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