On April 9, President Biden fulfilled a campaign promise by appointing a presidential commission on Supreme Court reform. In doing so, he responded to escalating calls from liberal Democrats to do something about a court they see as likely to hamstring the Democrats’ legislative agenda — and who feel that Mitch McConnell and Senate Republicans wrongfully denied them at least one, if not two, Supreme Court appointments. Most calls for reform have suggested expanding the number of justices on the court, which would allow Biden to appoint more justices himself. But reformers have also suggested term limits and jurisdiction stripping — that is, removing some issues from the court’s reach altogether.
Biden tasked the commission with producing a report that, among other things, examines previous eras in which Americans seriously discussed overhauling the court’s size and structure. When the commission’s members dive into this historical research, they will quickly discover that those debates have generally taken place during periods of crisis in American democracy.
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Scholars have identified six ‘crisis periods’ in U.S. history
In “Four Threats: The Recurring Crises of American Democracy,” Suzanne Mettler and Robert Lieberman identify six periods in which political elites voiced sharp concern about whether U.S. democracy would survive. During the 1790s, 1850s, 1890s, 1930s, 1970s, and 2010s, partisan elites voiced not just standard objections to their opponents’ platforms, but existential fears of democratic erosion or collapse. Mettler and Lieberman write that each crisis period featured spikes in at least one, and often more than one, of these four threats: partisan polarization, economic inequality, racist limits on political membership, and presidential abuses of power.
As my research has shown, most of these crisis periods also witnessed prominent proposals for court reform. And this time is no different.
Crisis periods in U.S. history have often coincided with calls for court reform
Take the crisis of the 1790s, for example. After losing the polarized election of 1800, President John Adams and his Federalist allies in Congress dramatically expanded the size of the federal courts during the lame-duck period after they were voted out of office. They then rushed to fill the newly created seats with loyal partisan allies, prompting the incoming president, Thomas Jefferson, to complain that the Federalists had “retired into the judiciary as a stronghold.” The Federalists played constitutional hardball because they believed the Jeffersonians threatened the survival of U.S. democracy.
Once Jefferson and his allies took control, they quickly set about reducing the size of the federal courts and impeaching Federalist judges who, from Jefferson’s perspective, had abused judicial power for partisan ends. In other words, the Jeffersonians also played constitutional hardball, because they too saw their opponents as threats to the survival of U.S. democracy.
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In the 1850s and ‘60s, a court controlled by White Southerners championed slavery and then tried to undermine the Union war effort. Congressional Republicans responded with a proposal to abolish the court and reconstitute it from scratch. While that law was not enacted, the 1860s Congress did alter the court’s size three times to ensure that its justices were appointed by Republican Presidents Abraham Lincoln and Ulysses S. Grant, but not Democratic President Andrew Johnson. Those laws could be described as partisan court-packing. But for the Republican members of Congress who enacted them, these shifts were necessary to prevent Johnson and the court from joining forces to thwart the Republican effort to build a multiracial democracy in the South.
In the 1890s, populists called for curbing a court they saw as hostile to congressional efforts to regulate the emerging capitalist economy. These calls escalated over succeeding decades, as the court repeatedly invalidated minimum wage and child labor laws, until the fight over President Franklin D. Roosevelt’s plan to expand the court from nine to 15 members in the 1930s. Again, opponents denounced FDR’s plan as a partisan attack on the court. But from his perspective, enabling the New Deal to respond to the Great Depression was an existential effort to keep democracy alive in an age of rising totalitarianism. If the court was blocking that effort, then FDR felt he had to reform the court.
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Court reform debates are linked to debates over democracy itself
Throughout U.S. history, crises of democracy have prompted discussions of Supreme Court reform because the court itself has often been perceived as a barrier to democratic preservation and renewal. That’s true beyond the United States as well. In a number of democratic countries in recent years — including Poland, Hungary, Turkey and India — anti-democratic leaders have tried to enlist the courts in efforts to undermine fundamental norms and institutions of democracy. When and where this happens, advocates for small-d democracy respond with calls for court reform.
Currently in the United States, the sharp uptick in Republican state legislatures’ gerrymandering and voter suppression efforts has made federal voting rights legislation an existential priority for Democrats. To enact such legislation, Democrats may need to eliminate or dramatically reform the Senate filibuster rules, to enable legislation to pass with a simple majority rather than the 60 votes currently needed to close Senate debate. For such legislation to remain valid, Democrats may need to overhaul the Supreme Court as well. After all, it was the Roberts court’s invalidation of a key provision of the 1965 Voting Rights Act in 2013’s Shelby County v. Holder that enabled the recent wave of state voter suppression laws. And as I wrote here at TMC two years ago, the Roberts court is likely to treat the current proposals to protect voting rights as skeptically as it treated the original Voting Rights Act.
In other words, Biden’s court reform commission is but the latest episode in America’s long national tradition of responding to crises of democratic governance with debates over institutional reform.
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Thomas M. Keck (@tmksyracuse) is professor of political science at Syracuse University’s Maxwell School of Citizenship and Public Affairs and is the author of “Judicial Politics in Polarized Times” (Chicago University Press, 2014).