How to stop Brett Kavanaugh: threaten to expand the Supreme Court to 11 members

(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at:, or follow me on Twitter.

Brett Kavanaugh sounds like a really bad dude. If he made it onto the Supreme Court, he would take the USA in a terrible direction. How should the Democrats stop his nomination? Since they lack power right now, they need to make use of power they will have in the future. They need to credibly threaten to end the independence of the Supreme Court, the next time they hold the majority in Congress, and hold the Presidency.

This is known as “court packing” and the idea was first suggested on February 5, 1937 by President Franklin Roosevelt:

On February 5, 1937, President Franklin Roosevelt announces a controversial plan to expand the Supreme Court to as many as 15 judges, allegedly to make it more efficient. Critics immediately charged that Roosevelt was trying to “pack” the court and thus neutralize Supreme Court justices hostile to his New Deal.

During the previous two years, the high court had struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government. Flushed with his landslide reelection in 1936, President Roosevelt issued a proposal in February 1937 to provide retirement at full pay for all members of the court over 70. If a justice refused to retire, an “assistant” with full voting rights was to be appointed, thus ensuring Roosevelt a liberal majority. Most Republicans and many Democrats in Congress opposed the so-called “court-packing” plan.

In April, however, before the bill came to a vote in Congress, two Supreme Court justices came over to the liberal side and by a narrow majority upheld as constitutional the National Labor Relations Act and the Social Security Act. The majority opinion acknowledged that the national economy had grown to such a degree that federal regulation and control was now warranted. Roosevelt’s reorganization plan was thus unnecessary, and in July the Senate struck it down by a vote of 70 to 22. Soon after, Roosevelt had the opportunity to nominate his first Supreme Court justice, and by 1942 all but two of the justices were his appointees.

As I’ve mentioned before, no sane individual wants to see the end of the independence of the Supreme Court. But the Republicans are not sane, and when they blocked the nomination of Merrick Garland, they made clear they intended to end the independence of the court, by packing it with right-wing extremists. So it is now necessary to remind them that the independence of the Supreme Court is not protected by the Constitution of the USA, but rather, has been a convention that all major political actors have adopted, for 230 years, and supported voluntarily.

Given the extremism with which the Conservatives are trying to pack the court, it is important to remind them that the independence of that court is one of the pillars of our civilization, and is supported by the goodwill of all actors, who voluntarily cooperate to keep the Court independent. That goodwill is dependent on all actors avoiding extremism.

If the Democrats win big in 2020, then they could appoint 2 new liberals to the court, or even, following FDR’s example, appoint 6 more liberals to the court, expanding the court to 15, thus giving it an overwhelming liberal majority. And then when the Republicans next hold the majority they could do the same, and when the Democrats next hold the majority they could do the same, and when the Republicans next hold the majority they could do the same, and so on and so on, and thus the independence of the court is destroyed, and with it a pillar of constitutional rule. There are good reasons why the Supreme Court should not suffer these kinds of wild swings in its majority, but if the Republicans want to pack it with extremists, the Democrats should remind everyone that they are also free to do the same thing.

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