The Fight for the Supreme Court Post-Kavanaugh

By Reginald Oh

Brett Kavanaugh is a U.S. Supreme Court justice. That means now there is a clear five conservative justice majority which could work to systematically gut constitutional rights. But, all is not lost. There are two possible solutions to the Kavanaugh appointment: 1) impeachment; and 2) increasing the number of SCOTUS seats. Impeachment, though, presents serious difficulties. The better solution is the second option: Democrats should seek to increase the number of seats on the Court.

Impeachment

If the Democrats regain the majority in the House of Representatives on November 6, should they consider impeaching Kavanaugh on the basis of his compromised Senate confirmation hearing testimony? They could try, but impeachment will likely fail to result in Kavanaugh’s removal.

The problem is the bifurcated impeachment process under the Constitution. While the House can bring articles of impeachment against a federal judge and officially “impeach” him/her by a simple majority vote, that only means the process moves to the Senate for a trial to determine if removal from the bench is warranted. For Kavanaugh to be removed, 2/3rds of the Senate or at least 67 senators must vote to convict. That will be a difficult hurdle to meet. It would require the election of many more Democrats and the votes of several Republicans. In the current polarized political climate, that seems like an impossible task.

Republicans currently hold a 51-49 advantage in the Senate. 67 votes are need to convict an individual impeached by the House.

Is there another recourse? Or do we have to wait until conservative justices retire and a Democratic president is in office to appoint more liberal justices? There is another option, and it may provide a stable, effective, long term solution to the problem of an anti-democratic Supreme Court.

Increasing the number of seats on SCOTUS

With Kavanaugh’s appointment, there are currently five solid conservative justices and four liberal justices on the Court. Kavanaugh replaces Anthony Kennedy, who was the swing justice on the Court occasionally siding with the liberal justices to render progressive decisions. Kennedy, for example, wrote the majority decision in Obergefell v. Hodges, the case in which the Court held that the right to marry is a fundamental due process right which states could not deny to same-sex couples. We have little indication, however, that Kavanaugh could play a similar role as a swing justice. It’s more likely that he could become the most conservative justice on the Court.

SCOTUS Justice Brett Kavanaugh, 53, testifies before the Senate at his confirmation hearing.

Since 1970, Justices have served on the Court for an average of 26 years. Given the relative youth of the conservative justices, Kavanaugh’s appointment could mean a rock-solid conservative majority for at least the next decade, perhaps even longer. While Chief Justice Roberts may evolve to become a swing justice ala Kennedy, that is something that cannot be counted on.

To prevent a firm conservative bloc on the Court from radically rewriting constitutional protections, once the Democrats control Congress and the Presidency, they should pass legislation to increase the number of justices on the Court from the current number of nine. A Democratic president then could appoint at least one new liberal justice to the Court and erase the conservative majority.

Is this even possible as a legal matter? Yes. There is nothing in the Constitution that requires the Court to consist of nine seats. The Constitution is silent about this issue. It has been Congress who has determined the number of seats on the Court. When the Supreme Court was first established in 1789, Congress provided for five associate justices and one chief justice for a total of six justices. Since then, the number of seats on the Court has changed multiple times. The last change occurred in 1869 when the present number of nine was set. Bottom-line, there nothing inherently inappropriate politically about changing the number of Court seats.

The original Supreme Court, clockwise from top left: John Blair Jr., William Cushing, Robert Harrison, John Jay, John Rutledge and James Wilson.

A question remains-how many additional seats should be added to the Court? Adding two additional seats to bring the number up to eleven total seats seems entirely reasonable. Eleven is the number frequently suggested when legal commentators starting discussing this possibility immediately after Kennedy announced his retirement. The number is not unusual. When a federal circuit appellate court sits as a full panel, a total of eleven judges hear a case. Thus, if a Democratic president could appoint two additional liberal justices to the Court, that would create a liberal majority.

Adding two seats may be warranted to make up for the seat lost when Mitch McConnell refused to call a vote on Merrick Garland resulting in Neil Gorsuch ultimately being appointed. If Garland had been appointed, even with Kavanaugh’s appointment, the Court would have a 5-4 liberal majority. It may also be warranted to make up for Kavanaugh’s confirmation despite the allegations of sexual assault, his misleading testimony before the Judiciary Committee, and serious questions about his judicial temperament. The “remedy” for those arguably illegitimate appointments would be adding two justices to give liberals a 6-5 majority.

One argument against increasing the number of justices is that, once the number has been changed by one party, that could start a never-ending war in which both parties will change the number of seats whenever they are in power. So, the fear is if the Democrats change the number of seats from nine to eleven  this time around, the next time the GOP are in power, they’ll increase the seats from eleven to thirteen to add two conservative justices onto the Court. Then in response, when the Democrats are in power, they would respond by increasing the number to fifteen, and so on. That would be a disaster for the Court. Constantly changing the number of SCOTUS seats would undermine the Court’s stability and legitimacy.

That is a reasonable and legitimate concern.

I offer two responses. The first solution is for Congress to change the number of seats by legislation and then codify that number into the Constitution via amendment. However, that solution is unlikely given the difficulty of the constitutional amendment process.

The second solution? I suggest that the Democrats increase the number of seats by just one to create an even numbered, ten justice Supreme Court. Why? Because a ten justice Court will create ideological balance among the justices, make it difficult to overturn established constitutional rights, lessen polarization between liberal and conservative justices, and make it politically difficult to change the number of seats in the future.

So, let’s say in 2021, the Court remains split with five conservative justices and four liberal ones. An additional seat is added. If a Democratic President is given one additional justice to appoint, that would mean there would be five liberal and five conservative justices on the Court. There would be ideological balance.

If the Court is deciding a case and it splits along partisan lines, it would split evenly, 5-5. What happens when there is a tie between the justices?  It means that the lower court ruling is affirmed and there is no binding Supreme Court precedent on the issue. A tie would also mean a Supreme Court decision would not be overruled. If five justices wanted to overrule Roe v. Wade while five justices did not, the tie would mean Roe would be upheld.

A ten justice court effectively requires a supermajority on the Court to render binding precedent. And when the Court is split 5-5 ideologically, for there to be binding Supreme Court precedent, you would need a bipartisan supermajority which includes either one liberal justice or one conservative justice joining the majority. Otherwise, there would be status quo among Supreme Court precedent and lower court rulings would be upheld. For the foreseeable future, then, a ten justice Court would prevent it from radically subverting precedent and engaging in unfettered judicial activism.

Moreover, by increasing the number of seats by only one and creating an even number of justices, the argument that it is a blatantly partisan move is neutralized. The argument would be that the addition of one justice is to make up for the unfair and illegitimate blocking of Merrick Garland’s appointment by the GOP Senate, and therefore is not a partisan power grab, but a move to create balance on the Court. Opponents would not be able to argue that the Democrats are trying to “pack the Court.”

Increasing the seats to ten would also make it politically difficult for future Congresses to change the number of seats. Any attempt to change the number would seem blatantly partisan and either party would need a compelling reason to upset the balance on the Court. There likely would be vigorous political blowback from voters of all political persuasions.

Additionally, along with adding one seat to the Court, the Senate could change its voting procedures as permitted by the Constitution. The Senate could enact two procedural rules to apply in the future: A rule requiring sixty votes in the Senate to change the number of seats on the Court, and a rule requiring sixty votes to confirm a Supreme Court justice. The Senate could also insert a provision that requires a supermajority to change or repeal both of those rules. All of that together would make it procedurally difficult to muster up the votes to change the number of seats on the Court.

Ultimately, for a ten justice Supreme Court to become reality, what is needed is a Democratic majorities in the House and Senate and a Democratic president. It also means starting the conversation now about this issue and laying the groundwork for political support. That means democratic participation & civic engagement. It means calling members of Congress, exercising the right to free speech, vigorously engaging in public discourse, and of course, voting. Implementing a remedy to neutralize an anti-democratic Supreme Court depends on We The People.

The fight for the Supreme Court is not over. It’s only just beginning.

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Reginald Oh is Professor of Law at Cleveland-Marshall College of Law, Cleveland State University. He teaches Constitutional Law, Civil Procedure, and Legal Profession.  His scholarship has focused on 14th Amendment Equal Protection issues of racial equality and racial discrimination. He has published in the Wisconsin Law Review, U.C. Davis Law Review, and Fordham Law Review.