In Defense of the Biden-Harris Plan to Reform, Not Pack, the Courts

Donald Trump’s undisguised authoritarianism creates a quandary for Republicans who believe in the rule of law. Most of them have decided they either don’t care about or actively endorse Trump’s refusal to accept defeat, plans to abuse power against his enemies, and so on. A small principled handful have decided to oppose him in order to uphold democracy and the Constitution. In between lies the anti-anti-Trump right, formally critical of the party’s cult leader yet unable to break with him.

The key premise of the anti-anti-Trump right is that, while Trump may be vulgar and even dangerous, the Democrats are equally threatening to the republic. In 2016, Hillary Clinton was “totalitarian.” In 2020, Joe Biden would “suppress any and all opposition” and pursue “runaway leftism and the destruction of American institutions.” The threat of the totalitarian Democrat is a foundational element of the anti-anti-Trump worldview.

The idea that serves this necessary role in 2024 is the proposal floating around Democratic politics to reform the Supreme Court. These reforms would constitute “radical and dangerous changes in our form of government,” argues Ramesh Ponnuru. National Review’s Dan McLaughlin calls the plan the Democrats’ “Own January 6 for the courts” and an “authoritarian coup.” And so, once again, the authoritarian issue is a tie, freeing up conservatives from the painful necessity of breaking cleanly with their own indefensible nominee.

Kamala Harris’s supposed threat to reform the Court is a debaters’ point, rather than a realistic fear. Harris’s own commitment to the issue is minimal, as activists supporting it lament. Even if she favored it, the Senate is extremely unlikely to have a Democratic majority, let alone a majority of Democrats willing to endorse procedural reforms far more drastic than ones the party has previously blanched at. And even in the wildly unlikely event that Democrats muster concurrent majorities for Court reform in both chambers, and eliminate the filibuster to pass it, the whole thing is almost certain to be struck down by the Supreme Court — which, after all, is controlled by conservative Republicans who very much do oppose any change that would threaten their grip on power.

But even as a debaters’ point, the Democratic Court-reform plan utterly fails to fill the role anti-anti-Trumpers need to play. It is not a “Court-packing” scheme nor an assault on the Constitution. It is a procedurally fair idea to correct undeniable problems in the status quo.

The Biden administration’s Court-reform proposal has three elements. The first is a constitutional amendment overturning Trump v. the United States, which gives presidents broad immunity against criminal prosecution. (The nearly impossible hurdle for enacting a constitutional amendment makes this idea a dead letter.) The second element is mandatory rules for financial disclosure, a sticking point given the Court’s insistence on self-policing. The third and most controversial piece is a proposal to change and regularize the process by which presidents fill spots on the Court. Under the new system, justices would serve 18-year terms, and presidents would fill a vacancy in the first and third year of their term.

Whatever you want to say about Biden’s plan, it’s not Court-packing. Court-packing refers specifically to a scheme to gain a durable majority of a court by increasing its size and simultaneously filling the vacancies with loyalists. Franklin Roosevelt famously proposed, and was forced to abandon, such a plan in 1937. Republicans have attempted or floated court-packing plans at the state level in numerous states and have successfully implemented it in Arizona and Georgia. (The muted objections from the right over these maneuvers at the time indicate how small a role principle plays in their concern).

Still, packing the Supreme Court would amount to a significant escalation over the state-level court-packs favored by Republicans. But the Biden plan would not pack the Court by any reasonable definition of the term.

It would address the perverse manner in which power is allocated on the Supreme Court. In a polarized system, lifetime appointments mean that enormous shifts in jurisprudence rest on arbitrary health events. The way your party maintains influence on the Court is by persuading its own side’s justices to engage in strategic retirements (stepping down when their party controls the White House and Senate). The way it loses power is when its justices die in office during opposing party control. The Republicans’ 6-3 majority is entirely due to the fact that Thurgood Marshall and Ruth Bader Ginsburg tried and failed to outlive Republican presidents. But creating a system where elderly justices are desperately trying to extend their lives for fear of triggering enormous adverse policy changes is quite obviously undesirable.

“Biden notes that ‘the United States is the only major constitutional democracy that gives lifetime seats to its high court justices.’ That’s a good thing,” huffs McLaughlin, “We’re America. Our system is the best.”

Even if you assume the American system is best, a questionable assertion, it hardly follows that every aspect of the system is ideal. For instance, the Electoral College has an even number of votes, creating the possibility of ties. Is that the best possible system, because we’re America, goddamn it?

In truth, the only reason anybody has to support this arrangement is if they belong to the party that owes its majority to it. The Republicans have enjoyed continuous majorities of the Supreme Court for more than five decades. The Court’s current composition, combined with the heavy Republican bias of the Senate, means Republicans are unlikely to relinquish that majority for years if not decades.

Republicans won this majority through legitimate exercise of the rules of the game. But that game includes winning two presidential elections in which Democrats won the national vote, discarding an old norm to deny an incumbent president a vote on a Court vacancy, and getting their justices to play the strategic retirement game in a more ruthlessly partisan fashion. That is how Republicans have turned being outvoted in seven of eight presidential elections into an unshakable grip on the most powerful branch of government.

Biden’s reform proposal would not guarantee a Democratic majority (which is a feature of any court-packing plan). It would merely create the possibility of one, depending on whether Democrats can win enough elections. What Republicans insist upon is maintaining a system that gives them quasi-permanent control of a branch of government that is empowered to overrule laws passed by the other two branches for any reason it wants.

They further demand those justices be permitted to accept lavish gifts from allies without limits or even mandatory disclosure — to even acknowledge the lifestyle subsidy granted by their ideological network’s billionaire patrons creates any temptation would, by the reckoning of conservatives, undercut the majesty upon which their authority rests.

Harris does not pose a practical threat to the right-wing hammerlock on judicial review. She poses an ideological and moral threat. Notably, however, even the moral threat she presents pales in comparison to the one made by J.D. Vance, who is immersed so deeply in the post-liberal right that he is already planning to defy the courts when his actions go so far even they refuse to abide it:

“I think Trump is going to run again in 2024,” he said. “I think that what Trump should do, if I was giving him one piece of advice: Fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people.”

“And when the courts stop you,” he went on, “stand before the country, and say —” he quoted Andrew Jackson, giving a challenge to the entire constitutional order — “the chief justice has made his ruling. Now let him enforce it …”

“We are in a late Republican period,” Vance said later, evoking the common New Right view of America as Rome awaiting its Caesar. “If we’re going to push back against it, we’re going to have to get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”

If Kamala Harris or Tim Walz was predicting the republic will and must fall, and that they are prepared to defy Court orders to impose their solution on it, imagine what conservatives would be saying!

If your voting issue in this election is “which ticket respects the autonomy of the legal system,” the answer is obvious. Conservatives may oppose the specifics of the Biden-Harris Court-reform plan or even the premise that reform is necessary. But their claim that it represents a threat to the republic, and that this is in any way comparable to Trump’s conviction that he is entitled to rule regardless of election outcomes and entitled to wield power in office however he sees fit, is not a serious one. It is just another in a long string of Trumpian rationalizations.