YOO: Expanding The Supreme Court Will Only Make It Another Partisan Political Body

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John Yoo Professor, Berkeley Law
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Progressives are bringing attacks on the federal courts to a new low. They began by launching a campaign of character assassination against Justice Brett Kavanaugh. While Democrats had mounted opposition to Samuel Alito and John Roberts for their past writings and official actions, they had not raised claims of sexual harassment since their failed effort to stop the nomination of Clarence Thomas (disclosure — I served as a law clerk for Justice Thomas). Democrats are using the allegations to discredit Kavanaugh, whom they suspect will vote to overturn Roe v. Wade, or to threaten him into moving toward the middle.

They crossed another line by continuing the attacks on Kavanaugh after his confirmation to the Supreme Court and threatening impeachment. Our political system had discarded the idea of using impeachment to remove judges on ideological grounds ever since President Jefferson’s effort to remove Supreme Court Justice Samuel Chase failed in 1804.

Their attacks on the judiciary, however, have not stopped with efforts to influence Justice Kavanaugh. Democratic political leaders and progressive intellectuals are demanding a fundamental change to the Supreme Court. If Democrats cannot stop Trump from appointing conservative judges, then they can promise to create more judgeships when they return to power. Former Texas congressman and presidential candidate Beto O’Rourke, for example, proposed expanding the size of the Supreme Court from 9 to 15 justices and imposing a limit of 18 years on their terms. Agreeing with the idea, Mayor Pete Buttigieg declared that increasing the number of justices to 15 would “prevent the Supreme Court from continuing on this trajectory to become basically ruined by being a nakedly political institution.” Senator Kamala Harris warned that “we are on the verge of a crisis of confidence in the Supreme Court” and that “everything is on the table” to “take this challenge head on.” Senator Elizabeth Warren threatened, “If Republicans are going to try to block us on key legislation or judges that we’re trying to move forward, then you better believe all the options are on the table.”

These comments would spark howls of outrage if a Republican Congress had made them during the reign of a Democratic president. But legal academics and leaders of the bar, who normally should oppose blatant efforts to interfere with the independence of the judiciary, have fallen into line. Instead, they believe that political payback for the failed Merrick Garland nomination and Trump’s appointments of Neil Gorsuch and Kavanaugh justify court-packing. “The time is overdue for a seriously considered plan of action by those of us who believe that [Sen. Mitch] McConnell Republicans, abetted by and abetting the Trump Movement, have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us,” declared liberal Harvard law professor Laurence Tribe. Tribe announced a campaign to increase the size of the Court by four justices.

Liberals also defend changing the Court’s size as necessary to alter the path of constitutional law in a liberal direction. Erwin Chemerinsky (dean of my law school) defends court-packing as “the only way to keep there from being a very conservative Court for the next 10–20 years.” Other scholars were shocked to discover that the Court had rendered political decisions. Only now that Trump had appointed the justices would liberals support an increase in the Court’s size. “Here to stay is the sea-change the Republican party has forced onto a once-proud institution. No longer a ‘check’ or ‘balance,’ it is now — and will henceforth be seen by both sides as — simply another lever of power,” writes noted constitutional scholar Garrett Epps. “And on the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.”

Progressives have launched such a destructive attack on Kavanaugh and the independence of the federal judiciary because their fears have come true: Trump indeed has launched a conservative makeover of the federal courts, which may finally undo the liberal remaking of society through judicial fiat. Trump’s very success has set off the extreme, anti-constitutional response that has liberals attacking the independence of the Supreme Court and, perhaps, sparking a cycle of retribution that will make the judiciary a political body.

Progressives may disapprove of Trump’s picks, and his judicial agenda, but the answer is not to further politicize the judiciary.  Suppose former Vice President Joe Biden wins the presidency this November, Democrats win a majority in the Senate and retain control of the House. They may well follow through on threats to add six new justices to the Supreme Court. But what will happen when Republicans retake the presidency and Congress – as they inevitably will; the only question is when. They naturally will retaliate by increasing the Supreme Court by another four or five justices. Soon the Court will become just another federal agency, whose personnel will change with each presidential election in order to carry out the winner’s policies.

Such an outcome may prove satisfying to progressives determined to overthrow constitutional tradition in their quest to defeat Trump, but it will come at the long-term cost of turning the federal courts into another openly partisan political body, rather than an institution that tries its best to do justice under neutral principles of law. There is a reason why the Supreme Court’s size has remained nine justices for more than a century: because our political parties realized that they should confine their competition to the elected branches of government and that our nation still needs a more impartial third branch to interpret and apply the law, rather than seek to constantly change it according to popular whim.  Ironically, progressives who constantly accuse Trump of violating the Constitution are the ones eager to toss out its inconvenient traditions and destroy institutions to get their man. And it is Trump, the populist iconoclast, who is defending the Constitution by fighting efforts to pack the Supreme Court.

John Yoo is Emanuel S. Heller Professor of Law at UC Berkeley, a Visiting Scholar at the American Enterprise Institute, and a Visiting Fellow at the Hoover Institution. A former Bush Justice Department official, he is the author of Defender in Chief: Donald Trump’s Fight for Presidential Power (forthcoming July 2020, St. Martin’s Press).