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The Case For Court Packing As A Way To Promote Democracy


In recent years, as Republican appointees have come to dominate the federal courts, Democrats have begun to call for reforms of the process in general and the Supreme Court in particular. Those calls have begun again after the Supreme Court last week voted to let a new law take effect in Texas intended to severely restrict access to abortions in that state. On Friday, a group of Democrats in the House of Representatives introduced a bill that would impose term limits on Supreme Court justices. Before that, Congresswoman Alexandria Ocasio-Cortez of New York, among others, revived their demand that the court be expanded. She tweeted that, quote, "Democrats can either abolish the filibuster and expand the court, or do nothing as millions of people's bodies, rights and lives are sacrificed for far-right minority rule," end quote.

We want to tell more about this movement to reshape the high court, so we called someone who's been writing about it. Stephen Feldman is a constitutional law professor at the University of Wyoming College of Law. He's the author of "Pack The Court! A Defense Of Supreme Court Expansion." And he's with us now. Professor Feldman, welcome. Thank you for joining us.

STEPHEN FELDMAN: Thank you for having me.

MARTIN: So what's your best argument for expanding the court, or packing the court, as you say?

FELDMAN: No. 1, it's constitutional. Congress has changed the size of the court many times. No. 2, the makeup of the court and the court's decision-making process has always been partly political. And No. 3, the Roberts court is extremely conservative in many, many ways, especially in its hostility to democracy. So while the Democrats do control the House, the Senate and the presidency, they should take this opportunity to expand the court and add progressive justices.

MARTIN: There are those who believe - who continue to believe that the Supreme Court should be above politics. But this seems to have become a very political debate. I mean, the fact - the reality seems to be that these arguments center on people getting the kinds of outcomes that people want from the court. It seems that the people who want to expand the court at the moment are angry at the decisions that the court is making and those who created the conditions that allow the court to be as dominated by conservatives as it now is by refusing to consider the nomination of Merrick Garland, for example, during the Obama term. Well, you know, I think their point of view is that they're getting the outcomes that they want now. So I guess the question is, is the argument that the court should be above politics - what do you say to that?

FELDMAN: I think that is simply untrue. The court has always been political in multiple ways. No. 1, Congress has changed the size of the court multiple times during history, often for political reasons. No. 2, the nomination and confirmation process has always been partly political. So, you know, because of polarization today, sometimes the political fights are more stark, but if you go back in history, confirmations have quite often been vigorous political battles.

And then finally, the actual decision-making process of the court is always political in part. I call it a law-politics dynamic. So this notion that the justices should decide apolitically or neutrally I think is just false. Constitutional interpretation in particular - if we look at constitutional cases, it's never mechanical. It's never two plus two equals four. The justices' political backgrounds, their cultural views always influence how they interpret the relevant text, whether it's the constitutional text or a statute.

So, for instance, if you compare like Justice Alito on the far-right and Justice Sotomayor, who's more progressive, they'll look at the same constitutional language, and they'll interpret it differently. And it's not because one is lying or being disingenuous or doesn't know how to interpret the constitutional language. It's because they're interpreting from different political perspectives.

MARTIN: If the Democrats could somehow overcome the filibuster to expand the court, what would stop Republicans from expanding it again?

FELDMAN: All right, the fact is that the current court as constituted does not reflect popular votes for president. Like, seven out of the last eight elections, the popular vote was for the Democrat, yet the Supreme Court is controlled 6-3 by conservative majority. If there was court-packing or an expansion of the court and you had a progressive majority on the court and then there was voting rights legislation, the court would most likely uphold that voting rights legislation.

So if the people who actually get to vote and decide, then the odds are that there won't be, as it's sometimes referred to, tit-for-tat court-packing, right? It's not like the Republicans will suddenly seize control of the House, the Senate and the presidency, which would be required to expand the court again. If the Republicans ever do that, it'll be a different Republican Party from what we have today.

MARTIN: So finally, President Biden said during his campaign last year that, quote, "the last thing we need to do is turn the Supreme Court into just a political football. Whoever has the most votes gets whatever they want." But in April, he did launch a committee to look into possible reform strategies. But, you know, as long as there's a filibuster in the Senate, Democrats - it would seem that Democrats are very unlikely to be able to pass any sort of Supreme Court reform. So at the end of the day, does this basically live in this committee as a thought experiment, as just something to talk about?

FELDMAN: Possibly that is the case. And that's true for really anything on the Democratic agenda right now. The hope is that when the Democrats realize that time is running out and they're not going to accomplish anything unless they maneuver around the filibuster in one way or another - that doesn't necessarily mean eliminating it completely, but at least narrowing it or making it more difficult - it's going to be hard to accomplish anything. So I think court-packing there or court expansion is no different than anything else on the Democratic agenda. I mean, all they need to do to expand the court is pass a statute. There's really nothing else to it. Pass a statute, and then the president can nominate new justices.

MARTIN: That was professor Stephen Feldman from the University of Wyoming School of Law. He's the author of "Pack The Court! A Defense Of Supreme Court Expansion." Professor Feldman, thank you so much.

FELDMAN: Thank you very much for having me.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.