Unpacking the Democrats’ Court Dilemma

(and how they can solve the SCOTUS Sudoku)

If Joe Biden is elected President and Democrats take back the Senate on November 3, any executive orders and legislation they succeed in passing in the foreseeable future will face the scrutiny of a conservative supermajority of six to three on the Supreme Court. Recognizing this, some commentators have urged Democrats, if they win big a week from Tuesday, to add and fill new seats to the Supreme Court. Balancing this with new polling which shows that most voters do not favor Democrats expanding the size of the Supreme Court, Vice President Biden this week proposed a bipartisan commission on judicial reform, but he reassured voters that the mission would not be “not about court packing.”

Rather than unilaterally increasing the size of the bench, Democrats might consider a third option: they could adopt the judicial reform plan first proposed by President Franklin Delano Roosevelt — the Judicial Procedures Reform Bill of 1937. The plan would allow the President to add a new Supreme Court appointment if a current Justice who is 70 years old or older does not retire. Each Justice once he or she reaches retirement age would therefore have a choice: exit and keep the Court at its current size or remain and expand the size of the Court, knowing that doing so would dilute the individual power of his or her vote. This is somewhat similar to the current rules governing lower federal courts. Like the 1937 reform bill, the new law could set a cap at 15 justices serving at one time. Judges may prefer retirement if remaining on the bench increases the likelihood that an even number of Justices would lead to ties.

If the Democrats do hypothetically win big this November and successfully pass this reform in the next presidential term, how much would it actually help their cause?

To find out, first look at the current ages of the SCOTUS judges:

Justices by DOB & Age:

Clarence Thomas: 6/23/1948 (72)

John G Roberts: 1/27/1955 (65)

Stephen Breyer: 8/15/1938 (82)

Samuel A. Alito, Jr.: 4/1/1950 (70)

Sonia Sotomayor: 6/25/1954 (66)

Elena Kagan: 4/28/1960 (66)

Neil McGill Gorsuch: 8/29/1967 (53)

Brett Kavanaugh: 2/12/1965 (55)

Amy Coney Barret: 1/28/1972 (48)

With the ages of the current Justices in mind, here are some possible scenarios of how that new law might reshape the Court if it is revisited, passed in 2021, and vacancies quickly filled.

Possible Political Makeup of Court:

1.

2021: Thomas, Alito, & Breyer Retire 5D:4R

2.

2021: Thomas or Alito & Breyer Retire 5D:5R

3.

2021: Neither Thomas, Alito, nor Breyer Retire 6D:6R

4.

2021: Only Breyer Retires 5D:6R

For the sake of argument, let’s say Scenario #4 takes place, with only Breyer retiring. If so, here’s how things might play out if the Republicans retook the presidency and Senate in 2025:

2025: Both Roberts and Sotomayor retire 4D:7R

2025: Roberts retires, but not Sotomayor 5D:8R

2025: Sotomayor retires, but not Roberts 4D:8R

2025: Neither Roberts nor Sotomayor retires 5D:8R

In short, if Republicans win it all in 2024 and preserve the new law without any changes, it guarantees them a three-seat advantage. But what if Democrats do keep the presidency and control of the Senate in 2025?

2025: Both Roberts and Sotomayor retire 6D:5R

2025: Roberts retires, but not Sotomayor 7D:5R

2025: Sotomayor retires, but not Roberts 6D:6R

2025: Neither Roberts nor Sotomayor retires 7D:6R

In other words, the proposal would most likely not deliver Democrats a majority on the Court in Biden’s first presidential term but would increase the likelihood of a single swing vote determining majority opinions; it would restore Republicans’s present numerical advantage if their party wins in 2024; and it would probably give Democrats a one vote-lead if they sweep again in 2024.

This is not a solution that either side would love, but it might prove mutually beneficial enough that it can sustain shifts in which party controls the White House and Senate at any given time.

Is any of this even legal? The Constitution itself is vague on the subject of choosing Supreme Court Justices: per article II, section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” The Document doesn’t provide further guidance on what constitutes as “Advice and Consent,” nor how many Justices must sit at one time.

Despite those omissions, not long ago, the three bodies of government could rely on Senate etiquette and tradition for guidance. The President would nominate a judge to fill a Supreme Court vacancy, and the Senate would vote on that candidate in a timely manner. Throughout the 1980’s and 90’s, Senate Democrats honored this process four times under Republican presidents and, in the case of Justice Kennedy’s 1988 appointment, even in an election year. That custom came to a halt in 2016 when Republican Senate Majority Leader Mitch McConnell refused to bring to a vote President Obama’s pick to replace the late Justice Antonin Scalia. Had the Senate actually voted and confirmed Obama’s choice, Judge Merrick Garland, the Court would have had more Justices appointed by Democrat presidents than by Republicans for the first time in nearly fifty years. Sen. McConnell’s bold move has left Democrats with a sense that both a seat and the Court itself was stolen.