How the Wrong Supreme Court Reforms Could Expand Presidential Power
A problem that should guide the reform debate.
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The Supreme Court decision in the Louisiana voting rights case, Louisiana v. Callais, has ignited condemnation by critics and calls for aggressive Court reform. On the list of potential reforms is Court expansion, or “packing,” which is one response to the core complaint that the conservative majority is implementing a hard-right ideological agenda, one that is also in some respects partisan, or exhibiting a moral blindness that valorizes a polity placed in the control of white Americans.
In this post, I will set aside engagement with the Callais decision. As a Democrat concerned about the weakening of the Voting Rights Act, I have little to add to other more thoughtful critiques of the decision. I do agree with my colleague Rick Pildes that the decision was a “long time coming.” Yet the Court has also unwisely injected itself into the struggle over the control of Congress in the current midterms. It remains to be seen whether the rush on the part of Republican governors to capitalize on the decision to create more districts favorable to their party this fall will succeed. The Court has a role to play here: It can take steps to contain the immediate fallout from the decision in the coming months.
My concern in this post is to consider how Democrats, progressives, and other critics of the Court should think about reform in relation to the major constitutional question of the times: the vast expansion of presidential power (or claim to power), unchecked by a feckless Congress controlled by the president’s all too-eager-to-please co-partisans. One clear issue requiring close attention is how Court reform could worsen the trend toward the aggrandizement of presidential power. Much Court reform is being advocated on the case for its short-term effects: reducing the power of this Court. Attention should also be paid to the longer-term effects in weakening the Court—described by Sarah Isgur as the “last branch standing”—and strengthening the president’s hand.
The current Court majority is made up in part by justices selected by Trump in his first term—a process that was heavily influenced by the Federalist Society, with nominees drawn from the conservative elites. Trump discovered by experience that this was not what he wanted: As he has expressed in no uncertain terms, he now deeply regrets the effect of his reliance on the Society. He wanted loyal judges, not on the conservative program, but instead on the Trump team. On all the available evidence, Trump has no concern for jurisprudential philosophy, craftsmanship, or consistency. Hence his rage at the Court for failing him on the tariff question and, he seems sure, preparing to deal him a further defeat on birthright citizenship, and maybe other pending decisions of importance. But just as the president is unhappy with the Court, so are his opponents.
As a result, the Court and Court reform will likely be very much before the voters in the next presidential election. The pressures on presidential candidates to make commitments of one kind or another about the Court and its reform will be intense. Most candidates critical of the Court will pledge to “do something about it,” just as presidents are expected to do something about everything. The implications of various reform proposals may get short shrift, particularly the effects of reform on the presidency and its powers.
What this means for reform like Court “packing” or “expansion” is that a president whose party controls the Senate can take no chances with the nominees they select for the new spots. They are not promising the voters independence and its correlate, fine judging qualities. They are pledging results. They will be under pressure to put forward either reliable ideologues or (in what might otherwise be a welcome change), lawyers drawn from service other than on the bench. The race will be on for activists, loyalists, and true believers. Each president will be striving to make the Court his or her own.
In some administrations, presidents in an era of repeated Court expansions may feel free to begin communicating directly with justices on pending cases. Trump already does so frequently on Truth Social. Who is to say that it stops there? Norms are crumbling to the ground all over the place, and it is not clear why the norms governing a president’s relationship to the Supreme Court are any better protected from erosion than those that once defined the sphere of independence entrusted to the Department of Justice. The whole point of packing is for each dissatisfied party to move the Court back in its preferred direction as soon as it has the White House and a Senate majority. The expectations may turn out to be such that ongoing communications with justices may be one way to ensure success or achieve course corrections.
Consider, too, other actions that Congress may take to rein in the Court, like jurisdiction-stripping measures to prevent it from deciding certain cases. Here again, the legislation under consideration will not only or primarily spring from congressional deliberation. It will be directed by a president, or at least depend on his or her approval.
Court reform may be due: I certainly think so, having argued like many others for term limits for decades. Under the most frequently discussed reform that would set an eighteen-year limit, and when fully enacted after transition from the present system, each president would wind up with no less than two choices per term. Bad things, like bad appointments, can happen even under this system. But arguments for term limits can be argued in neutral, institutional terms (just as opponents can object on the same basis). The system provides for more orderly, less volatile changes in composition. We do not end up, as we do with Court packing, with a Court of a large and ever-expanding institution jousting continually—just as their nominating presidents intended—across the political and ideological divide. This is itself a check on the risks of expanded presidential authority.