Michael Klarman — the Kirkland & Ellis Professor of Law at Harvard University — is now coming out in favor of court-packing.
In a Monday post on the Take Care legal blog, Dr. Klarman called the Supreme Court “an adjunct of the Republican Party,” pointing out that despite Republicans losing the popular vote in six of the past seven presidential elections (the lone exception being George W. Bush in 2004), they’ve gotten to appoint a majority of Supreme Court justices, ensuring an arch-conservative court capable of overruling both the executive and legislative branches of government for potentially decades to come.
Today’s conservative majority on the Court busts labor unions (which remain the backbone of the Democratic Party) and undermines class-action litigation (which the Republican justices apparently regard as a gravy train for plaintiffs’ lawyers, who contribute disproportionately to Democratic coffers). That same majority legitimizes voter suppression (which purports to be addressed toward a form of voter fraud that exists only in the fevered imagination of Fox News viewers), with the effect of diminishing turnout among constituencies that disproportionately support the Democratic Party—racial minorities, poor people, and young adults.
Dr. Klarman also said Senate Majority Leader Mitch McConnell (R-Kentucky) of “straight-out stole” what should have been Barack Obama’s third Supreme Court appointment by refusing to even give one confirmation hearing to centrist judge Merrick Garland — the chief justice of the second-most powerful court in the United States — following the death of Supreme Court justice Antonin Scalia.
While Klarman laid out his support for establishing term limits for Supreme Court justices — with each justice serving one 18-year term — he posited that because such a proposal would require a Constitutional amendment, the process would take too long to implement. In the meantime, Dr. Klarman said that should Democrats take back the White House and the Senate, they shouldn’t shy away from passing a law allowing for the appointment of at least two new Supreme Court justices.
“Adding one justice would be an obvious and eminently equitable solution to Mitch McConnell’s theft of the seat President Obama nominated Merrick Garland to fill. But Democrats should not stop there,” Klarman wrote. “A president who lost the popular election by 2.9 million votes … ought not to be making Supreme Court appointments that will continue to affect the country for the next thirty-plus years. Democrats must seize the earliest opportunity to offset those appointments with some of their own.”
“Democrats cannot undo Trump’s illegitimate appointments to the Supreme Court in the same way that they can repeal voter ID laws or undo Republican political gerrymandering. Supreme Court appointments carry lifetime tenure, and the only constitutional way to offset them is by creating new Court vacancies to be filled by Democrats,” he continued.
“Moreover, just about every democracy-entrenching device that Democrats might enact—new voting rights legislation at the federal level, campaign finance laws, state independent districting commissions—is a plausible candidate for invalidation by a Republican majority on the Supreme Court.”
The Harvard professor’s proposal makes the idea of packing the Supreme Court more mainstream, given that he’s been a Harvard professor since 2008, and clerked for Supreme Court justice Ruth Bader Ginsburg — who also went to Harvard — when she was a judge on the U.S. Court of Appeals for the DC Circuit. However, no potential Democratic contenders in 2020 have openly endorsed the idea of court-packing as of this writing.
Tom Cahill is a contributor for Grit Post who covers political and economic news. He lives in Bend, Oregon. Send him an email at tom DOT v DOT cahill AT gmail DOT com.