There is growing interest among the 2020 Democratic presidential candidates in expanding the Supreme Court. According to Politico, Senators Kamala Harris, Elizabeth Warren and Kirsten Gillibrand “would not rule out expanding the Supreme Court if elected president.” In the same article, Former Representative Beto O’Rourke and South Bend Mayor Pete Buttigieg “suggested they might support expanding the high court as part of their bids to win the Democratic nomination.”
This move is not universally embraced by the Democratic hopefuls as Senator Cory Booker and Senator Amy Klobuchar were more cautious, suggesting that Supreme Court expansion is not the desirable outcome. However, the fact remains that there are mainstream voices in the Democratic Party suggesting that, purely because they do not like the political balance of the Supreme Court at this time, we should alter this institution to make it more politically favorable to them.
I could write you an article about how the judiciary is not intended to be a political body, and that would be theoretically true. That is the way that it should be, but in reality, ever since Robert Bork was denied his spot on the High Court, the judiciary has become functionally a political institution. Merrick Garland’s failure to get a hearing and Brett Kavanaugh’s contentious hearing have only made that truth more evident. I’m not going to pretend that both sides have not played a role in the increasing politicization of the Supreme Court.
Consequently, if the Supreme Court and the judiciary as a whole has functionally become a political institution in and of itself, then the best thing we can do is evaluate the potential political ramifications of a judiciary framed by the nominees of one particular party. If one of these Democratic candidates secures the presidency in 2020, there is really no doubt that expanding the Supreme Court means adding two more progressive jurors to swing the balance of the Court away from its current conservative majority.
It is hard to argue that if Democrats made this unprecedented and belligerent move to politicize the Supreme Court in this way, Republicans would counter the next time they had the option to add additional Justices. The process would presumably repeat ad infinitum for the foreseeable future until we had 1001 Justices or some bizarre number like that hundreds of years in the future.
That being said, even if the process would eventually balance itself out and if Republicans would overturn the majority in the Supreme Court in four or eight years, there is a very real philosophical problem with the type of progressive Court that would be built by these candidates if they possess a majority in the Senate and the Oval Office.
Just to get you thinking, let me share this article from The Atlantic written by Erwin Chemerinsky, the former Dean of the UC Irvine School of Law and current Dean of the UC Berkeley School of Law. He suggested, ahead of the 2016 presidential election, a list of things that would probably happen with a progressive Supreme Court. That vision had obviously not been realized yet, but notice this ominous pair of sentences that conclude his piece.
I admit, this sounds nice. Of course we want to advance liberty and justice for all. However, there is a dreamlike quality here. If progressives can dream of it, a liberal court could make it happen. Not a liberal legislature, but a progressive court.
The Supreme Court is not fundamentally supposed to advance anything. This is the danger of leftist judicial philosophy. The Supreme Court is meant to interpret the law and strike down laws that do not align with the Constitution and precedent. The legislative branch of the government is the one that is meant to advance policies. That body, determined by the will of the people as expressed in the ballot box, is the one that is supposed to advance legislation. If they advance legislation too far or outside the bounds of the Constitution, then the Court has the responsibility to strike it down, but the Court does not establish the law. The judicial philosophy of the Left is to weaponize the unelected Supreme Court as an activist body to advance legislation. In contrast, conservative judicial philosophy favors traditionalism and keeping the Supreme Court in its proper role as legal interpreter.
Consequently, we need to be very careful about blatant political moves to advance a judicial ideology inconsistent with the proper function of the Supreme Court. There is no other reason that these Democratic presidential candidates are suggesting to increase the Supreme Court. They want to fundamentally change the branch of government to a progressive extension of the legislature.
Having eleven people potentially on the bench in Washington is not the problem. Having any number is really not the problem. The problem is the judicial philosophy that would be embodied by the nominees put forward by the politicians advocating for this expansion.