Presidential Commission on the Supreme Court of the United States
well as its confirmation of the three Justices nominated by President Trump—and the effect those norm violations may have on both the health of the democratic process and the scope of bedrock constitutional rights. Proponents motivated by these developments contend that the Senate’s actions violated norms governing the confirmation process and that expansion of the Court would serve to counteract these violations and bring the Court’s jurisprudence into better alignment with prevailing values and views of the American public. Other proponents of expansion regard it as critical to prevent the continued undermining of our democratic system of government, which they regard as exacerbated by the Court’s jurisprudence. They view recent changes in the composition of the Court as accelerating these jurisprudential developments that began even before these most recent confirmations. On their view, expanding the size of the Court represents a constitutional and immediately achievable response to this threat to democracy that should not go unaddressed, even in the short term. Still others who believe expansion of the Court may be warranted cite the reform as a possible means of enhancing the diversity of the Court’s membership and assisting it to hear more cases each year.
1. Responding to Norm Violations
In recent times, arguments to expand the Supreme Court have been relatively rare, but not nonexistent.[74] In 2017, an academic’s call for congressional Republicans to expand the lower federal courts spurred an historian of President Roosevelt’s Court-packing plan to worry that President Trump would adopt such a proposal.[75] Supreme Court reform also became a pivotal topic in the 2020 Democratic primary, as several Democratic candidates endorsed significant reforms.[76] The Democratic Party Platform for the election of 2020 ultimately called for “structural court reforms to increase transparency and accountability,”[77] and candidates Trump and Biden debated the merits of Court expansion.[78] Events surrounding the last three nominations to the Supreme Court have helped spark the now-prominent calls for expansion of the Court.
Some proponents of Supreme Court expansion charge that Republican lawmakers since 2016 have disregarded institutional norms in order to secure a conservative supermajority on the Court.[79] They see expansion of the Court as particularly justified in light of Senate Republicans’ handling of the election-year nominations of Judge Garland and Justice Barrett. When Justice Scalia died unexpectedly on February 13, 2016, 269 days—more than 38 weeks—before the 2016 presidential election, the Senate held neither a hearing nor a vote on President Obama’s nomination of Judge Garland.[80] Yet when Justice Ginsburg died only 46
December 2021 | 75
