by Varun Gauri
The realist case for the Democrats to expand the Supreme Court, and more generally to reform and modernize the federal judiciary, should they have the opportunity, can be stated simply: What is the point of unilateral disarmament? For several decades, Republicans have weaponized the judicial branch by appointing a large number of ideologically vetted judges, some with less than stellar qualifications. As Bouie puts it, Republicans “blockaded” the U.S. Court of Appeals for the District of Columbia, filibustering Obama’s nominees and labeling routine efforts to fill vacancies as “court packing.” They barricaded Merrick Garland’s path to the Supreme Court. Defying precedent, they planted Amy Coney Barrett on the Supreme Court two weeks before a presidential election. Republican arguments questioning mail-in voting and limiting the franchise in the current election amount to a “fight in a much longer war.”
If Democrats don’t respond, given the opportunity, it sends the signal, in the words of Ocasio-Cortez, that Democrats “don’t have the stones to play hardball like they do.” A failure to act locks in Republican judges’ skepticism of voting rights, making Democratic electoral victories harder and Democratic policy objectives — fighting climate change, redressing social and economic inequalities — that much less likely.
Why should Democrats refuse all constitutionally available options when the other side does not? Why act like a chump?
A frequently expressed response to this realist case, especially on the part of those who value the institution of the Supreme Court, is that a Democratic expansion of the Court would merely extend the escalating spiral of retaliation between the parties. As Laurence Tribe put it in 2019, “Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.”
To speak to concerns like this, I want to argue that, in addition to the compelling realist case, there is an idealist case for expanding or reforming the Supreme Court and the federal judiciary more generally. By idealist, I mean a point of view that takes as its starting point that it is valuable for law to maintain its normatively binding power in our society.
Note that this idealist case regarding the rule of law is distinct from the nostalgist case regarding the role of judges. There are those who believe judges should look and act the part of wise elders, infallible sages, like members of some Anglo-Saxon Witenagemot. I think the nostalgist case is worse than useless, a source of unequal representation of minorities on courts, and often a fig leaf for inadequate reasoning on the part of judges.
The starting point for an argument on behalf of the idealist case is that the American society is characterized by normative pluralism – the unavoidable fact that people disagree about ultimate values. There is no authoritative external standpoint, such as divinity, a conception of nature, or transcendental reason, on which people can draw to resolve deep disagreements: our world is “disenchanted.” And economic and social processes, especially the division of labor and technical specialization, that multiply the various roles, tasks, and interest positions in societies have made societal coordination more important while at the same time demanding a stance of self-interested calculation that makes normative agreement yet harder. As a result, the shared background assumptions that facilitate meaningful social communication have faded, and forms of social, political, and legal power need to be continuously justified. Positive state-based laws, the foundation for legitimate coercive power in modern societies, require normative foundations and arguments that are widely considered to be valid. Judicial opinions, as expressions of law, must continuously establish their own normative power through persuasion.
What makes legal arguments persuasive? They are not persuasive if they are tendentious. They are not persuasive if they fail to put contrary opinions in the best light, include a limited range of insights drawn from a set of restricted set of life experiences, or leave out obviously imagined counterarguments. As Habermas puts it, “What is valid must be able to prove its worth against any future objections that might be actually raised.” Laws and legal opinions, then, if they are to be persuasive, require perspective taking, good faith, and the representation of diverse life experiences. (I believe it sometimes helps, but is not necessary, if those expressing arguments rooted in unusual life experiences have themselves lived them.) The ultimate goal of legal communication is a form of public opinion in which issues, contributions, information, and arguments are not attached to particular people but are common currency of the public sphere. In social life, the ring of truth is harmony, not melody.
This is obviously a complex issue that deserves a more serious treatment than I’m allotting, but I think this aspect of law, that it be publicly available, is intuitive. (Here is a longer piece, on related issues, that takes Habermas’ arguments as the point of departure.) Widely supported procedural rules like public trials, legal discovery, written and public justifications for judicial rulings, and even aspects of adversarial legalism are premised on it.
The upshot is that unless the federal judiciary is broadly representative, or composed of individuals who in their professional capacity are primarily motivated by perspective taking, judicial opinions lose their persuasive character in modern democratic societies, where the orientation toward mutual understanding is the primary source of a legal opinions’s legitimacy. Absent consideration of a wide range of arguments, rooted in various life experiences and historical precedents, and openness to potential invalidation, the opinions of judges are not normatively compelling.
In the absence of a diverse judiciary engaged in perspective taking, one encounters a situation in which judicial rulings might be complied with when personal or political calculations indicate the value of doing so, but the rulings themselves have little normative force. The rulings might then be greeted with pleasure, defiance, or grudging toleration, depending on your point of view, but not respect. They would resemble the Cold War SALT agreements negotiated between Carter and Brezhnev, valuable primarily for their protection against mutual destruction. In short, the idealist answer to Tribe’s concern is that the stabilizing force of the Supreme Court in American society arises not only, perhaps not primarily, from agreement about the role and structure of the institution itself, but from the normative power of its opinions — from their communicative and persuasive powers. Absent more (small d) democratic input, that persuasive power necessarily declines, as does the judiciary’s “vital role in stabilizing the national political and legal system.” Expanding the Supreme Court, and reforming the federal judiciary more generally, might feel radical, given how rarely that has occurred in history. But what is sacred about nine justices? It’s important to avoid a nostalgic view, which idolizes judicial form over the substantive purpose of law. If done for the right reasons and in the right manner, Court expansion could actually be a stabilizing, democracy-preserving enterprise.