The Democrats’ big win in the Senate has major implications for the Supreme Court — and for how they should think about reforming it.
It’s not just that a Democratic Senate will be able to guarantee President Donald Trump won’t get another Supreme Court pick. It’s that control of the Senate should cause Democrats to reconsider the wisdom of plans to pack the court or strip it of jurisdiction over certain issues. If a Democrat wins the presidency in 2028 and the Democrats hold the Senate, the Democrats will have a chance to flip the court from 6-3 conservative to 5-4 liberal.
Even leaving aside the politics, consider the actuarial tables. The two oldest justices, Clarence Thomas (78) and Samuel Alito (76), are both Republican appointees. The average lifespan of a Supreme Court justice between 1975 and 1999 was 82.3 In 2032, the end of a hypothetical Democratic president’s first term, Thomas would be 84 and Alito 82.
It wasn’t so long ago that a president whose party did not control the Senate could still get a Supreme Court nominee confirmed. In 1988, a Democratic-controlled Senate unanimously confirmed Justice Anthony Kennedy, who was nominated by President Ronald Reagan. Two years later a Democratic Senate confirmed David Souter, who was nominated by President George H.W. Bush, and a year after that it confirmed Thomas.
Fast forward to Feb. 13, 2016, when Justice Antonin Scalia died during the presidency of President Barack Obama. One month and three days later, Obama nominated moderate Judge Merrick Garland to replace him. The Republican Senate exercised its constitutional prerogative to give or withhold its advice and consent by refusing to put Garland up for a vote.
For the last 342 days of Obama’s term, the Supreme Court functioned with just eight justices. Once Trump became president, he quickly nominated Justice Neil Gorsuch, who was confirmed by the Senate less than three months later.
The Senate’s refusal to confirm Garland changed the unwritten norms of the confirmation game. Now, it seems all but certain that the Democratic Senate would refuse to confirm a Trump nominee, even if two years had to pass before Trump left office. What’s more, Democratic anger about the court’s conservative constitutional revolution makes it all but impossible to imagine the Democrats acting otherwise.
The size of the Democrats’ Senate margin gives us reason to push the scenario a little further. Imagine that in 2028, a Republican wins the presidency but Democrats maintain their hold on the Senate. Would the Democrats continue to refuse to confirm a Republican nominee even then? Nothing in the Constitution requires them to confirm nominees they don’t want.
In fact, to get right down to it, nothing in the Constitution actually says how many justices have to sit on the Supreme Court. The Constitution creates the court and mentions a chief justice, but leaves it to Congress to determine the size of the court. In theory, the Supreme Court could shrink by attrition if the Senate refused to confirm presidential nominees. There could be eight justices, or seven, or fewer.
This would not be ideal, from the court’s perspective. But from a political standpoint, it would be a judgment by a Democratic Senate about the political cost of refusing to confirm a Republican nominee. It seems entirely plausible that Democrats would decide they had more to lose by confirming a Republican nominee than they would by blocking one.
The possibility of a Supreme Court with a majority of Democratic-appointed justices in the foreseeable future has policy consequences, too. Ethics requirements for the justices, for example, are in principle desirable. So the Democrats can be expected to propose and probably pass legislation imposing such a code. (The constitutionality of the code would, of course, be up to the Supreme Court justices to decide.) In contrast, proposals to pack the court by adding more members, or to strip the court of its jurisdiction over some controversial issues, make little sense if Democrats take seriously the prospect of a liberal recapture of the institution.
If the Supreme Court’s composition and authority have been reshaped by aggressively partisan reforms, it will be hard to argue that it should proceed — or be perceived — without reference to partisanship. As Democrats consider their strategy, and especially if they can envision a way to arrest the court’s conservative turn through the confirmation process, they should be careful not to undermine the legitimacy of what is still the highest court in the land.
