Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the American Civil War did the Senate confirm a Supreme Court Justice in a presidential election year without bipartisan support. In fact, except for the sensational appointment of Justice Peter Daniel in 1841, all appointments to the Supreme Court in presidential election years involved either bipartisan consent or confirmation by the incoming Senate with a fresh mandate. This is true even of appointments made after a President became a lame duck or lost a re-election bid and even when the President’s party controlled the Senate. Disregard of this embedded constitutional convention undermines fundamental principles of popular sovereignty. Third, the breach of this constitutional convention is not a matter for political repercussions alone. Well aware of the potential of court packing to rein in a Court, the Framers intentionally allowed its exercise in the Constitution. Further, they adopted life tenure for Justices while relying on the availability of court packing as a restraining mechanism to protect popular sovereignty. Court packing is, thus, the antidote by constitutional design to a partisan takeover of the Supreme Court during election time, as part of the inherent checks and balances of a popular sovereignty system. Senators must be aware that an appointment confirmed by a purely partisan vote during presidential election time legitimizes court packing as a countermeasure.
A Note
This Essay was written during late September-early October 2020, after Justice Ruth Bader Ginsburg passed away and before Judge Amy Coney Barrett was confirmed as a Supreme Court Justice. It was submitted to the Senate prior to the confirmation vote by the Cardozo Law Review as part of a special volume dedicated to this topic. It has been publicly available since October 2020 on SSRN. I kept the original text and only made minimal linguistic updates to reflect the passage of time.
Introduction
The 2020 U.S. election season amounted to a perfect storm. It exposed a widespread deep loss of faith among the American people in their governing institutions. No less than the integrity of the U.S. democratic system was on the line. The stakes increased even further when then President Donald Trump insisted on appointing a Justice to the Supreme Court mere days before the presidential election based on partisan votes in the Senate alone,1 after millions of Americans had already cast their votes.2 Yet, even in the face of this belligerent partisan behavior, scholars caution against court packing. They argue that resorting to court packing is a breach of constitutional convention in and of itself, and that democracy does not justify such quid-pro-quo behavior.3 Michelle Obama popularized this understanding in her famous speech, “when they go low, we go high.”4 Furthermore, court packing is considered the nuclear constitutional weapon that may open the gates for an endless battle over the Supreme Court’s composition. It may set a precedent for the use of abusive constitutional methods to enforce the government’s will, ultimately leading to the disintegration of the American Republic.
In light of this perception, the Constitution seems to be powerless in the face of a forceful administration that does not care about constitutional conventions and upsets expectations for representatives’ restraint during election time. Constitutional conventions seem to be the outer layer of protection of the inner workings of constitutional democracy. When political actors flamboyantly disregard constitutional conventions, power appears to be up for grabs.
U.S. scholars distinguish between the legal and political dimensions of the American Constitution. While the legal dimension of the Constitution is enforceable by courts, the political constitution is not. Scholars assume that constitutional conventions are the domain of the political constitution alone.5 Violators of conventions, therefore, would only pay a political price, if at all. This understanding relies heavily on the influence of the British constitutional system on the American tradition, and stems primarily from the work of Albert Venn Dicey, the greatest British constitutional scholar of the nineteenth century.6 Adrian Vermeule writes, “[t]he classical approach in Commonwealth legal theory, stemming from the pre-eminent Victorian theorist Albert Venn Dicey, holds that conventions ‘are not enforced or enforceable by the Courts.’”7
However, this Essay argues that the relationship between the political and legal constitutions is different. Theoretically and historically, constitutional conventions were always meant to be enforced, in Britain as well as in the United States. The enforcement mechanism is to deploy another political body different than the offending body. Thus, for example, if the executive breaches a constitutional norm, it is the legislature’s responsibility to rectify. Ultimately, if political actors do not follow conventions, the courts are expected to enforce them. This is especially true of constitutional conventions that protect against partisan abuse of political power during election time.
Yet, the likelihood of petitioners successfully challenging the constitutionality of a U.S. Supreme Court (SCOTUS) appointment during election time is probably low. The Court will most likely treat the constitutional convention as nonjusticiable. This should not prevent, however, petitioners from approaching the Court. The Court treated congressional internal proceedings as justiciable in the past.8 In 2020, for instance, the Court used long settled constitutional “practice” and “tradition” to interpret the scope of discretion of the Electoral College in Chiafalo v. Washington.9 A similar interpretive path that grants decisive weight to constitutional conventions to guard first order democratic principles should be adopted with regard to the Senate’s “advice and consent” role to SCOTUS appointments. If the Court decides to sit idle in the face of manipulation of the appointment process, it will find it difficult to intervene when faced with court packing as a countermeasure.
Court packing is, in fact, part of the checks and balances of American democracy to counter partisan abuse of appointment power to the Supreme Court during election time. Well aware of the method of court packing, the Framers opted to allow its exercise in the Constitution. They provided life tenure to Justices because they relied on court packing as an available remedy to rein in a partisan takeover of judicial power.
A note about terminology is required. This Essay uses the term “court packing” as commonly used in popular media. Thus, court packing refers to changing the size of the Supreme Court to neutralize an illegitimate partisan takeover, in breach of constitutional conventions.10 The Framers, however, treated illegitimate partisan takeover attempts intended to forestall or circumvent election results as court packing.11 Under this justified understanding, enlarging the Court’s size to undo such manipulation is, in fact, de-packing the Court.
This Essay makes three bold arguments: First, Presidents may, and do, nominate candidates to the Supreme Court at any time in their term. This is supported empirically as well as normatively. Second, never in American history since the Civil War did the Senate confirm a Supreme Court Justice in a presidential election year without bipartisan support, unless confirmed by an incoming Senate with a fresh mandate. This is true even when the President’s party controlled the Senate. In fact, except for the sensational appointment of Justice Peter Daniel in 1841, the political actors conformed with this constitutional convention since the founding of the Republic. Disregard of this embedded constitutional convention frustrates primary principles of popular sovereignty. Third, the breach of this constitutional convention is not a matter for political admonition alone. The Framers were well aware of the potential for court packing to restrain a politicized Court, and intentionally crafted a Constitution that allows court packing, enabling its use as a last resort enforcement mechanism. They allowed changing the Court’s size, whether by adding members or downsizing, to restore public confidence that there was no partisan illegitimate takeover of the Court. Court packing does not exploit a constitutional loophole. It does not amount to a breach of constitutional conventions that may not be justified as a reciprocal move against a rival’s behavior. Rather, to safeguard popular sovereignty, court packing, by constitutional design, is the actual antidote to a partisan Court takeover. If not for the availability of court packing, the Justices would not have enjoyed life tenure. Senators must be aware that independence of the Judiciary in the American system requires avoiding partisan takeover of judicial power during election time or the rectification of such a move by court packing.
I. Appointments of Justices during Presidential Elections
On September 26, 2020, President Donald Trump announced Judge Amy Coney Barrett as his nominee to the U.S. Supreme Court. This decision created shock waves throughout the country. Barrett was a Conservative, intended to fill the vacant seat left by the Liberal Justice Ruth Bader Ginsburg, who passed away just a few days earlier. All knew that, should this nomination receive Senate confirmation, the U.S. Supreme Court’s composition would further tilt towards the Conservative direction, giving Conservatives a decisive six-to-three majority. The public, then accustomed to five-to-four decisions on many divisive issues with a mixture of victories to both Conservatives and Liberals, anticipated a consistently Conservative Court that will remain so for generations to come in light of the young age of many of the recently appointed Justices.1213 The stakes were high. But, supposedly, in politics “you win some and you lose some.”
A. The SCOTUS Bipartisan Convention
1. The Contours of the Convention
This nomination, however, was different. Appointing a Justice during a presidential election year raises serious concerns of legitimacy. Since vacancies may and did occur during presidential election years throughout American history, this Essay argues that a constitutional convention developed to guide the behavior of the political actors. To recognize the existence of a constitutional convention, three conditions should be met: (1) political actors must act consistently in a certain manner; (2) they should use rhetoric that recognizes the existence of a convention that guides their behavior; and (3) there should be a constitutional rationale that justifies this convention.14
This convention has been recognized and dubbed the “Thurmond Rule,” after the Republican Senator Strom Thurmond who reportedly championed this position in the 1980 election year, while a ranking minority member of the Carter administration’s Senate Judiciary Committee.15 According to the Congressional Research Service (CRS), most senators define the rule “as an established practice according to which, at some point in a presidential election year, the Judiciary Committee and the Senate no longer act on judicial nominations—with exceptions sometimes made for nominees who have bipartisan support from Senate committee and party leaders.”16
Senators attempt to stall judicial appointments to federal courts during election years citing either the Thurmond Rule explicitly or an existing tradition of slowing or even halting processing of nominations altogether. However, senators seem to rely on the convention for partisan gain in a way that casts doubt on the status of the convention. In 2008, Senator Arlen Specter aptly described, “[t]here is no Thurmond rule for Democrats when Republicans are in control and there is a Democratic President, and there is no Thurmond rule when the situation is reversed.”17 Robin Bradley Kar and Jason Mazzone went as far as denying the existence of the convention. They stated that an elected sitting President has always been able to appoint a Justice when a vacancy occurred before elections, even during a presidential election year. They thus harshly criticized the Senate’s refusal to consider President Obama’s nominee, Merrick Garland, following the sudden death of Justice Antonin Scalia in 2016.18
The status of the Thurmond Rule is oft disputed and the rhetoric surrounding it is strongly influenced by partisan interests, as appointments to circuit and district courts demonstrate with greater frequency. Senator Strom Thurmond was a Dixiecrat turned Republican and supported racist agendas. His motivation for insisting on the Thurmond rule in 1980 may well have been to block Jimmy Carter from appointing pro-civil rights judges.19 Moreover, though the CRS attributes the creation of the Thurmond Rule to 1980, Thurmond had already publicly advanced it in 1968 to block the appointment of Associate Abe Fortas to Chief Justice by President Lyndon B. Johnson. Republican Senator Robert Griffin, joined by sixteen additional Republican Senators, signed a petition stating that, “I would hope and expect that [the President] would not seek to deny the people and the next President of their appropriate voice in such a crucial decision.”20 Thurmond backed this petition as well.21
This Essay, however, argues that close examination of congressional records reveals that the Thurmond Rule has actually been ingrained in American tradition regarding appointment of Supreme Court Justices since the founding of the Republic. According to the convention, named in this Essay the “SCOTUS Bipartisan Convention,” a President must gain bipartisan support to a Supreme Court appointment during a presidential election year. Alternately, the nomination must wait to be confirmed by the incoming Senate, fresh from elections with a renewed mandate.
Two Republican Senators criticized the effort to appoint Barrett before elections. They provided rationales that align with the SCOTUS Bipartisan Convention. Senator Susan Collins, the only Republican to ultimately vote against Barrett’s confirmation,22 said:
In order for the American people to have faith in their elected officials, we must act fairly and consistently—no matter which political party is in power. President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials.
Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election. In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3.23
Similarly, Senator Lisa Murkowski has also stated that she does “not support taking up a potential Supreme Court vacancy this close to an election.” However, she nonetheless recognized that President Trump had “exercised his constitutional authority [in nominating] an individual to fill the vacancy on the Supreme Court.”24 Thus, she ultimately joined her Republican peers in voting to confirm Barrett, reasoning that she now needs to “look beyond process and to vote based on a solid evaluation of [Barrett’s] qualifications and fitness of judicial temperament.”25
Appendix A provides a full examination of the forty-two presidential nominations to the Supreme Court during a presidential election year since the establishment of the Republic. I examined all instances in which either the SCOTUS nomination was in the same calendar year as the presidential election or the confirmation vote was within twelve months prior to the President taking office. In 1933, following the ratification of the Twentieth Amendment, the President assumed office on January 20th instead of March 4th to shorten the lame-duck period.26 This definition of presidential election years tries to be expansive while balancing between efficiency and legitimacy.
This Essay focuses specifically on presidential election years because Presidents possess the power to make the first and final moves regarding federal judicial appointments. They set the agenda and the Senate enjoys the power of response alone. This Essay finds that whenever a vacancy occurred during a presidential election year, the sitting President nominated a Supreme Court Justice, even after elections were held, and even if he lost the election. This is true regardless of the cause of the vacancy. President Trump’s nomination of Barrett is therefore in line with American practice.
This is not merely an empirical finding. This Essay argues that it is a legitimate practice. There is a real need for a functioning high court at all times, and thus, the President is justified in nominating candidates to fill the void. However, the SCOTUS Bipartisan Convention suggests that the checks and balances against abuse of the nomination lies with the senators. They can do so by either garnering multi-party support or by deferring the decision to a new Senate with a fresh mandate from the people to confirm the nomination. If the President loses the election, the incoming President may decide not to reintroduce the nomination as soon as he is sworn in.
2. Appointment Success Rate in Presidential Election Years
Table 1: Breakdown of Supreme Court Nominations since the Founding27
As Table 1 shows, throughout American history, there have been 163 nominations to the Supreme Court, not including Barrett’s nomination. As expected statistically, roughly a quarter of them (42), were presidential nominations and/or confirmations to the Supreme Court during a presidential election year, as broadly defined above. This analysis also includes nominations of a sitting Justice to be a Chief Justice.
Of these forty-two nominees, only twenty-five nominations culminated in a confirmation by the Senate, comprising a 59.5% confirmation success rate. Three of the confirmed Justices declined the office, yielding a 52.4% success rate in appointments.28
William Smith (1836). See infra Appendix A, Tables 1–2. Of the failed confirmation attempts, the President withdrew the nominations of seven to avoid failure; the Senate postponed discussion of two, took no action with regard to six, and flat out rejected two nominees.29
In contrast, of the 121 nominations in the first three years of a presidential term, 101 were confirmed with a confirmation success rate of 83.5%. Of these, only four did not take office.30 The confirmation success rate during the first three years of a presidential term is, therefore, 40% higher than the success rate during the last year of the term. Thus, nominations to the Supreme Court in presidential election years have a much lower success rate than is typical in non-election years.31 Historically, even within the last year of the term, there is a skew towards the first three months of the year, with fewer attempts and successes in the last eight months leading to elections, as elaborated below.32
3. Type of Vote
Table 2: Breakdown of Late Term Nominations and/or Confirmations33
Of the twenty-five confirmed nominations to the Supreme Court that succeeded during a presidential election time, thirteen appointments were confirmed by a voice vote (52%).34 In a voice vote, the Presiding Officer of the Senate does not keep a quantitative record of how individuals voted and is satisfied with the impression that the “yea” votes outnumbered the “nay” votes. Since the opposition may impose a roll-call vote,35 it is a safe and common practice to assume that voice votes reflect bipartisan support.36 Sometimes, the same President had to resort to roll-call though other nominations of his garnered a voice-vote. This was true even of President Washington.37 If the appointment is contested, then even if the opposition fails to muster enough support to reject an appointment, it would seek to have a roll-call to dramatize the event. It would strive to register the opposition in the public mind to extract a political price for a partisan appointment.
Until 1966, the Senate voted on Supreme Court confirmations via voice votes if no one demanded a roll-call vote. Thereafter, all confirmations to the Court required a roll-call vote.38 Of the forty-seven roll-call votes on Supreme Court nominations since the Court’s establishment in 1789 and until 1966, seventeen took place during presidential election years.39 Statistically, presidential election years should have counted for only 25% of the roll-call votes. Yet, they comprised a strongly disproportionate 36% of the roll-call votes. Moreover, of the fourteen rejected roll-call cases during this period, six happened in presidential election years.40 Rejection in presidential election years, thus, counts for 43% of the rejected cases through roll-call votes. This data suggests that Court appointments garnered more Senate scrutiny during presidential election years. In the first three years of a president’s term, senators assumed that the President enjoys a legitimate mandate to appoint and did not scrutinize the process as heavily.
Table 3: Roll Call and Presidential Election Years
Twelve appointments were confirmed by a roll call vote. Of these, eleven were contested and another, Justice Anthony Kennedy, who was confirmed during Reagan’s presidency, passed unanimously with bipartisan support even though the opposition party, the Democrats, controlled the Senate. The Kennedy case had a roll call vote because starting from 1967 a new practice developed of determining Supreme Court nominations only by roll call votes.41 Two of the contested cases involved nominees John Catron and William Smith (who declined). Both were nominated for a new seat by President Andrew Jackson on March 3, 1837, a day before the new Senate began its session.42 Jackson, whose Vice President, Martin Van-Buren, had won the election bid in December 1836 and strengthened his party’s Senate majority, had his nominees confirmed in the new Senate despite the lack of bipartisan support by relying on the fresh mandate of the incoming Senate.43 The support rate for the other contested eight nominees—which had all relied on bipartisan support—never fell below 66% of the voting senators, and the narrowest vote margin between those in favor of confirmation and the opposition was fourteen votes, with the average falling closer to twenty-seven.44 There is only one case in American history in which a Justice was confirmed by the Senate without bipartisan support during a presidential election year. All the others, including sensational appointments conducted after presidents lost office or retired, involved the support of at least some Senators from the opposition.45
The sole exception to this convention was President Martin Van Buren’s confirmation of Peter Daniel as an Associate Justice in 1841. The circumstances surrounding the appointment and its aftermath were extraordinary. William Henry Harrison, hero of the War of 1812, won the 1840 presidential election while flipping both the House of Representatives and the Senate from Democratic to Whig control. On February 25, 1841, Justice Philip Barbour passed away, leaving a vacant seat a mere six days before the new Harrison administration was due to take office on March 4. Incumbent Democratic President Van Buren quickly nominated Peter Daniel on February 26 and the lame-duck Senate confirmed the appointment on March 2.46 The Whig Senators tried to rally in opposition to the confirmation, but, in a cunning move, the Democrats held the vote, in a decisive 22-5 vote composed of solely partisan support, with only one Whig Senator even present.47 Had the four dissenting Democratic Senators joined the absent Whigs, they could have prevented a quorum and blocked the nomination.
The drama did not end with the problematic appointment. Having just assumed control of the White House and the Senate following the 1840 elections, the Whigs faced the sudden death of President Harrison, a month after he took office. Vice President John Tyler, a former Democrat, succeeded Harrison and quickly alienated both the Democrats and the Whigs. He vetoed Whig bills, feuded with the Whig Senator Henry Clay and his supporters, and eventually found himself kicked out by his own party, effectively functioning as a political independent.48 Under these circumstances, not only was he unable to extract a price for Van Buren’s midnight illegitimate Supreme Court appointment, but Tyler struggled to confirm any appointments of his own. During the 1844 presidential election year, two Justices died, and Tyler attempted nine times to replace them by a roster of repeating nominees.49 He ultimately succeeded to appoint only one Justice, the Democrat Samuel Nelson, after seven failed attempts.50 This occurred after Senator Clay lost to the Democratic James Polk in the 1844 elections, and Whigs realized they would not be able to fill the vacancies left by Tyler with their preferred candidates.51 Thus, Nelson was confirmed by a voice vote, with minimal Whig opposition.52 By then, Tyler understood that he would need bipartisan support to fill his additional vacancy as well and turned to John Read, a Democrat who had supporters in the Whig camp. By this point, however, the Senate adjourned session and did not act on the nomination.53
4. Timing of Confirmation Within the Presidential Election Year
There was never a case in U.S. history of a successful appointment to the U.S. Supreme Court made during a presidential election year, and before election, without bipartisan support. This is true, even though most appointments to the U.S. Supreme Court during presidential election years and before election involved a united government situation. The majority party never imposed its will on the minority in a way that undermined the legitimacy of American democracy. Thus, even in united governments, successful appointments were made as much by roll-call votes as voice-votes during the presidential election year.54 The only unilateral partisan appointment ever made to the Court involved Peter Daniel and occurred after election by a lame-duck President.
Moreover, there are only three cases in American history of nominations made after March of a presidential election year and confirmed before election. Two of these appointments involved unanimous support and the third garnered more support from the minority than the majority party in the Senate. In 1892, Republican President Benjamin Harrison waited six months after the death of Justice Joseph Bradley to nominate and appoint George Shiras, Jr. to the Court by a voice vote in a Republican-controlled Senate. He later lost re-election and the Senate flipped to the Democrats.55 In 1916, President Woodrow Wilson was able to nominate and appoint John Clarke to the Court by voice vote in July. Wilson later won re-election.56
The third case involved President Grover Cleveland, a Democrat, who faced a Republican-controlled Senate and nominated Melville Fuller for the Chief Justice position. The appointment received more support from the Democrats than the Republicans. Fuller was nominated in April and confirmed in July based on 67% support with 80% of the Senators voting. More than half of the Republicans either supported or did not vote to enable this confirmation. President Cleveland later lost the election.57
There is also no case in American history except for the Garland affair, in which the Senate did not vote on a nominee to the Supreme Court, if the nomination was made until the end of March of a presidential election year.58 This is true in cases of both united and divided control of the presidency and the Senate. Furthermore, all the nominees that did not get a vote, except Garland, were nominated later than June 14th of an election year. In fact, of the eleven nominations made in U.S. history after March of a presidential election year and before elections, most did not garner a vote (63.6%).59 Whether the government is united or divided, after March of an election year the Senate votes only on nominations that garner broad bipartisan consent.
Table 4: Time of Nomination in Presidential Election Years and Results60
Some scholars distinguish between the Senate’s behavior before the Civil War and after it, or between nineteenth-century Senate and the twentieth-century Senate.61 While the numbers differ, the pattern holds true: with the exception of Justice Daniel, no late term appointment was confirmed without bipartisan support or the consent of a fresh Senate. Furthermore, eliminating President Tyler’s eight failed nominations, which skew the numbers, does not change the pattern. If anything, it bolsters the claim for the need for bipartisan legitimacy.
5. The Filibuster Myth
Scholars might wonder whether there is a SCOTUS Bipartisan Convention, or whether this phenomenon results from the filibuster mechanism alone, which traditionally allowed for unrestricted debate.62 But such an assertion is not supported historically. Until 1949, no cloture procedure that could end debate and force a vote on the merits was available to appointments. Potentially, any Senator could have filibustered the process to obstruct an appointment.63 Yet, it seems that no one utilized the filibuster against Supreme Court nominees during this period.64 This also explains why there was no rush to adopt a cloture rule to override filibusters of appointments while the need for a cloture rule for legislation manifested as early as 1917.65 Before the adoption of the cloture rule, the time period necessary to decide on a nominee to the U.S. Supreme Court in a presidential election year was 2.5 times longer than in the other three years, as shown below in Table 5.
Table 5: Length of Confirmation Process Before 194966
After 1949, overcoming a filibuster of Supreme Court appointments initially required the support of two-thirds of the senators (until 1975), and then of 60% (until 2017).67 Under these new rules, only Justice Kennedy was appointed in a presidential election year, and he was confirmed unanimously.68 Thus, the introduction of cloture does not explain the fact that no Supreme Court appointment in a presidential election year garnered less than 66% support in roll-call votes throughout American history. Rather, the SCOTUS Bipartisan Convention accounts for it.
This convention was born already in the early years of the Republic as a lesson from the traumatic first transfer of power from Federalists to Anti-Federalists in 1800. Jefferson at all times condemned partisan judicial appointments that frustrate election results as unjust, “indecent,” “unkind,” and non-democratic.69 President Adams’s infamous last minute, midnight judicial appointments, were the subject of the Marbury vs. Madison70Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). decision. Chief Justice William H. Rehnquist described the decision as “the most famous case ever decided by the United States Supreme Court.”71 Forever, in the collective memory, the growth of judicial power is linked to constraining abuse of political power during election time to manipulate control of the judiciary.
When the cloture rule was redefined to include Supreme Court appointments, the length of the appointment process grew, as shown in Table 6 below.72 Paradoxically, as long as any senator could block the appointment, no filibuster was utilized, since all parties understood that such behavior would lead the chamber to a deadlock. Once a super-majority requirement was set, the filibuster became a real threat.73 Thus, while scholars typically treat the cloture rule as facilitating the appointments process,74 it in fact became more difficult to appoint under it. Under the new system, as shown in Table 6, the confirmation process lasted fifty-seven instead of eleven days on average in the first three years of a presidency, and eighty-eight instead of twenty-six days in presidential election years. The Senate still dedicated more energy to scrutinizing appointments in presidential election years. Under the cloture system, the confirmation process took 54% more time in presidential election years in comparison to the other three years of the term.
Table 6: Length of Confirmation Process After 194975
In the election year of 1968, senators first used a filibuster against a Supreme Court appointment, successfully blocking Associate Justice Abe Fortas’s confirmation as Chief Justice.76 Some of the Republican senators legitimized their opposition to Fortas’s nomination by citing the election year.77 The Thurmond Rule was articulated during this time, but, as this Essay argues, the roots of it are in the Founding, with regard to SCOTUS appointments. It should be noted that Fortas’s appointment as Chief Justice faced bipartisan opposition.78
The SCOTUS Bipartisan Convention was so ingrained that in fact not only did some members of the minority party support the appointment, but also some members of the President’s party opposed it. Members of the President’s party felt free to either oppose the nomination or not vote, thus strengthening the opposition.79 The confirmation process was not treated as a battle for a partisan takeover of the Court, where party members were required to act with discipline, close ranks and prove their loyalty.80 Rather, bipartisanship was the norm if a nomination were to pass in a presidential election year. While the filibuster is typically treated as a mechanism to enable the minority to be heard,81 the SCOTUS Bipartisan Convention was intended to protect the expected incoming majority’s ability to enjoy a smooth, peaceful transfer of power.82
B. Rationales for the SCOTUS Bipartisan Convention
The rationale behind the SCOTUS Bipartisan Convention is two-fold. First, the convention is intended to enable the people to have input on the appointment of the Justices. Presidential candidates treat the power to appoint Supreme Court Justices as a central electioneering item and discuss their vision of the Court during campaigns.83 Many historians believe that appointing Justices to the Court is among the most important decisions a President can make.84 During election time, presidents suffer from a democratic deficit as it is not guaranteed that they or their party’s designated successor will win the election. Presidents must reflect the will of the people in proposing nominees and should not be able to frustrate election results through such appointments.85 Even the Senate during an election period does not muster the public confidence to act in a partisan way and make irreversible, hotly-contested decisions with long-term effects.86 One should bear in mind that, on the eve of Barrett’s confirmation vote, millions of Americans had already cast their votes in the 2020 election cycle, though these votes had not been counted yet. This democratic rationale has never been more relevant with the Supreme Court deciding issues of life and death, abortion, gay rights, gun-control, healthcare, border control, and gerrymandering.
Second, the Convention is intended to counter the agency problem, under which elected representatives as agents of the people might abuse their power and promote their self-interest rather than the public good. While this danger is part of the nature of representative governments, election times substantially bolster the risks of this danger materializing.87 Presidents in particular face the greatest temptation to engage in risky behavior to tilt election results or at least make executive, and even judicial, appointments that will promote their agenda even after they leave office. On the eve of Barrett’s confirmation, the data suggested that this fear was very much grounded.88 President Trump did not leave room for speculation whether this rationale applies. He repeatedly refused to commit to a peaceful transition of power. He had questioned the validity of the 2020 election’s results in advance, thereby laying the groundwork for disputing their results, and anticipated that the Supreme Court would need to determine the United States’s next President. President Trump explicitly stated, “I think having a 4-4 situation [in the Supreme Court] is not a good situation . . . . I think it should be 8-nothing or 9-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”89 Needless to say, the lack of willingness to commit to accepting election results runs against American democratic traditions. Democracy requires the peaceful transition of power.
While the Thurmond Rule discusses judicial appointments in general, this Essay argues that the Rule applies at least with regards to judicial appointments to the Supreme Court. The Supreme Court is the final arbiter on the law of the land and its decisions bind lower courts. It enjoys the power of stare decisis as part of the common law tradition.90 Though some Americans may deny this fact or challenge its acceptability, the Supreme Court not only interprets but also makes law. But, unlike members of the Executive and Legislative branches, Supreme Court Justices enjoy a life tenure during “good Behaviour” and their appointment is irreversible unless impeached by a supermajority of senators.91 Supreme Court appointments, therefore, present Presidents with greater incentives to act coercively and in a partisan fashion with elections underway. Partisan appointments to the Court during election time frustrate the very nature of representative government. Democracy requires that the people have an input directly or indirectly on policy and on the institutions governing their country.92
Worse yet, in March 2016, the Republicans refused to allow debate on President Barack Obama’s nominee, Merrick Garland, on the Senate floor. Prominent Republican senators like Majority Leader Mitch McConnell have stated that “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”93 Senator Lindsey Graham, then chairman of the Senate Judiciary Committee, even invited the public to “use my words against me,” should a Republican president be elected in 2016 and face a vacancy in the last year of his first term.94 While the Republicans treated March of a presidential election year as too late in the Garland case, they promoted Barrett’s appointment less than a month before the election. No other March-of-election-year nomination was doomed to the “No Action” archive of history. All five other “No Action” nominations took place within five months of the election, or even after the election. It is definitely against constitutional convention to allow one political party, but deny the other, the power to appoint, or at the very least debate an appointment, during election time. In this sense, the Republicans “stole” a judicial appointment from the Democrats.
Moreover, despite Republican control of the Senate, it is not a foregone conclusion that the Senate would have rejected Garland’s appointment had it received a floor vote. Senators may act and vote differently on preliminary procedural issues—such as whether to hold a confirmation vote, or whether to postpone a nomination—than they do on the substantive vote of the confirmation.95
One may argue that the two scenarios are different. In 2016, two different political parties controlled the presidency and the Senate. Realistically, President Obama would not have been able to appoint Merrick Garland, even if the Republican-controlled Senate held confirmation hearings. In 2020, the Republicans controlled both the presidency and the Senate and had the majority to confirm Barrett. This is a claim not just of political power to force the appointment but also of legitimacy. Political control of both institutions supposedly testifies to greater support from the public. Keith Whittington’s study may lend support for such a proposition.96 He found that no President appointed a Justice during presidential election years when the Senate was in control of the other party.97
The focus of Whittington’s study was explaining failed confirmations to the Supreme Court. He found that it is impossible to appoint a Justice during presidential election years if the Senate and the presidency are controlled by different political parties.98 However, he did not examine the composition of the political support for the appointments in the Senate. He also defined the election period narrowly to include only six months before elections and until a new President assumes office.99
The findings of this Essay are different. Presidents have succeeded in appointing Justices in presidential election years—defined to include all nominations made within the entire calendar year of presidential election and all appointments made within twelve months prior to the President assuming office—even when the opposition controlled the Senate.100 Moreover, even when the same political party controlled both the presidency and the Senate, confirmations still required bipartisan consent. This makes sense not only in light of the looming presidential elections but also because the public may have already expressed dissatisfaction with the current administration by overturning the control of either or both houses of Congress to the other party in midterm elections. This has in fact happened under the Trump administration, when the House of Representatives flipped to Democratic control in the 2018 midterm elections.101
The SCOTUS Bipartisan Convention prohibits appointments to the Supreme Court during presidential election years, unless achieved by bipartisan consent. Thus, it is in fact more legitimate, and even more constitutional, to appoint a Justice in election time if the presidency and the Senate are held by different political parties. This guarantees that no appointment is made without bipartisan consent. Research suggests that great Justices are appointed not by great Presidents but by Presidents in need of bipartisan support, including appointments during presidential election times.102 The need to garner bipartisan support affects the type of nominees chosen by the President.
Barrett’s confirmation before the 2020 election date based on Republican control of the Senate alone, was thus a severe breach of the SCOTUS Bipartisan constitutional convention. Never has a confirmation garnered less than a margin of fourteen votes when occurring so close before an election date.103 Except for the infamous case of Peter Daniel, which took place before the Civil War, never was a Justice appointed by an outgoing Senate without bipartisan support in a presidential election year.104
II. Court Packing as Constitutional Remedy
Liberal circles are discussing court packing in earnest as a possible response to Republicans’ breach of constitutional conventions. When asked during the presidential and vice-presidential debates, the Democratic Presidential candidate, Joe Biden, and his running mate, Kamala Harris, refrained from ruling out court packing as a possible response to the appointment of Barrett to SCOTUS before the election.105 Yet, many scholars argue that court packing is illegitimate and ill advised. It will diminish the independent status of the Supreme Court and subject it to political will.106 It might lead to endless wars between the rival political parties and cycles of retaliation.107 Imagine a more polarized American society than the present in which the Court loses its legitimacy to serve as the arbiter of constitutional disputes.108 Court packing could even backfire against the political party advancing it, as arguably happened to President Franklin Delano Roosevelt (FDR) in the 1930s.109 Scholars from around the world further warn that, by pursuing court packing, the Democrats will set a bad precedent internationally. 110 It will legitimize the actions of authoritarian leaders, who use court packing to repress opposition forces and destroy democracy while justifying it in the name of popular sovereignty. This dynamic is at play in countries such as Poland, Hungary, and Turkey.111
A. FDR’s Court Packing Plan
The public associates court packing with FDR’s threat to pack the Court in 1937 to overcome its resistance to New Deal legislation.112 FDR won repeated presidential elections and translated the results to a broad public mandate for reform. After a second landslide victory in the November 1936 election with the support of 60.8% of the popular vote, FDR proposed on February 5, 1937, to pack the Supreme Court.113 He treated the “Old-Court” veto as democratically illegitimate and justified court-packing in the name of popular sovereignty: “It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse [the Court] to pull in unison with the other two [Congress and the President].”114
The prevalent narrative suggests that in response to the threat to pack the Court, the Court “switched in time” and accepted the constitutionality of the New Deal legislation.115 This judicial legitimation of the constitutionality of expansive government intervention in economic life amounts to “the constitutional revolution of 1937.”116 The Court’s retreat obviated the need for FDR to act on his threat and pack the Court in the name of enforcing the people’s will. Others contended that the Court switched its position regardless of, and even before, FDR’s threat.117 Despite FDR’s claim that he intended to enforce the people’s will, his plan was not popular. A congressional majority, including some members of his Democratic party, opposed FDR’s court packing plan.118 In the midterm elections of 1938, the Democratic Party seemed to pay a price for FDR’s insistence to pack the Court, losing “71 House seats, 6 Senate seats, and 12 governorships.”119 FDR’s plan thus seems to be an unworthy exercise of statesmanship.
Moreover, the Judiciary Committee discussing FDR’s court packing plan in 1937 rejected the proposal with harsh, unequivocal criticism as a serious violation of constitutional conventions.120 It treated previous historical cases of court packing as justified on administrative grounds with the admission of new states to the Union.121 It claimed that even when, under extraordinary circumstances, presidents tried to manipulate the Court’s size to affect its ideology, it had never been done to direct a particular judicial decision.122 The Committee’s Report asserted:
It is a proposal without precedent . . . . It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights. . . . It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretation of the Constitution, a proposal that violates every sacred tradition of American democracy. . . . It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.123
This criticism marred court packing in American politics. It became an illegitimate, outcast political maneuver. The Senate Judiciary Committee not only ruled out court packing as inappropriate in America but felt the heavy weight of avoiding setting a dangerous precedent for the world at large. In the Committee’s words, “[i]t is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial.”124
B. The Antecedents in the British Model
However, FDR did not invent the idea of court packing. He relied on the British threats to pack the House of Lords (Lords) in the beginning of the twentieth century, which convinced the Lords to give up their veto power. On November 13, 1935, Roosevelt discussed with Secretary Harold Ickes the analogy between the crisis with the Supreme Court that they confronted and the crisis with the House of Lords that the British Liberal Government confronted in 1909–1911.125 At a cabinet meeting on December 27, 1935, FDR referred yet again to the British experience. Ickes recalled:
The President had a good deal to say about what the Supreme Court is likely to do on New Deal legislation. As once before in talking with me, he went back to the period when Gladstone was Prime Minister of Great Britain and succeeded in passing the Irish Home Rule Bill through the House of Commons on two or three occasions, only to have it vetoed by the House of Lords. Later, when Lloyd George’s social security act was similarly blocked, Lloyd George went to the King, who was in favor of the bill, and he asked Lloyd George whether he wanted him to create three hundred new peers. Lloyd George said that he did not but that he was going to pass through Commons a bill providing that in the future any bill vetoed by the House of Lords should, notwithstanding that, become the law of Great Britain if passed again by the Commons. He told the King that when that bill was ready to go to the Lords he would like the King to send word that if it didn’t pass, he would create three hundred new Lords. This the King did, with the result that the bill was accepted by the House of Lords.126
In analogizing the U.S. Supreme Court and the British House of Lords, FDR sought leverage mechanisms to overcome the veto power of the Supreme Court as a non-elected branch whose members enjoy a life tenure. He could not rely on a fully analogous precedent as the U.S. Supreme Court is exceptional worldwide in providing life tenure for Justices who exercise judicial review over primary legislation as the highest tribunal in the land.127 However, the Founding Fathers’ adoption of life tenure for Justices was inspired by the British Act of Settlement of 1701.128 This Act provided for judicial independence to the superior courts from royal intervention. Judges would be protected during “good behavior,” subject only to impeachment by parliament.129 The same language is echoed in Article III of the U.S. Constitution: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .”130 The Founding Fathers even listed royal intervention in judicial independence as one of the grievances against King George III justifying secession.131 The Declaration of Independence thus states: “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”132 Thus, the bitter experience with British executive encroachment on judicial independence led the Framers to adopt life tenures for Justices in the Constitution. This way, Justices would be guaranteed status and salary and be free to determine cases objectively, immune to external influences.
The linkage between the British and American judicial models does not conclude with life tenure for the Justices. In fact, the British House of Lords was the forerunner to the U.S. Supreme Court.133 The House of Lords fulfilled a dual function in British history: It was an upper legislative body like the American Senate. But, in addition, the House of Lords and eventually a sub-part of it, the Law Lords, served as the highest court of Britain like the Supreme Court.134 The Lords’ legislative veto on constitutional matters resembled judicial review power in the U.S. Both were intended to guarantee that no constitutional change would pass without popular consent. Dicey described this function of the Lord’s veto:
The legislative authority of the House of Lords meant, and was up to 1911 understood to mean, that the House had the power, and was under the obligation to reject any Bill of first rate importance which the House reasonably and bona fide believed to be opposed to the permanent will of the country. . . . [N]o one till 1910 and 1911 seriously disputed the doctrine that the House of Lords in modern times had the right to demand an appeal to the people whenever on any great subject of legislation the will of the electorate was uncertain or unknown.135
The House of Lords exercised judicial review in its capacity as a legislature rather than as a court, to prevent assertions that what the Lords allowed on one hand as a legislature, they later undid as a Court.136
The Framers of the Constitution debated at great length whether the judiciary should also serve as a Council of Revision and veto laws as part of the legislative function, like the House of Lords.137 They rejected this idea on separation of powers grounds. They did not want to grant the judges a “double negative” over laws, through a legislative veto in addition to judicial review.138 They further held that judges should not be biased in their judicial function because of their previous legislative involvement in them.139 The Framers explicitly discussed the similarities between the Lords’ legislative veto function and judicial review. They understood why the Lords exercised their judicial review function as a legislature rather than as a Court.
Thus, FDR’s reliance on British experience in search of ways to deal with the Court had legal, historical support. In 1911, the Lords lost their non-democratic absolute veto over bills because they usurped constitutional conventions, by vetoing Lloyd George’s budget bill of 1909 and forcing the British nation to endure early elections.140 They disregarded the British convention that the House of Commons, as the only elected branch, is supreme in fiscal matters.141 Liberal Prime Minister (PM) Herbert Asquith attacked the House of Lords’ action as “the most arrogant usurpation” of the House of Commons’ powers in two centuries.142 He viewed it as “a breach of the Constitution” that would bring about a constitutional revolution.143 Therefore, in 1911 the Lords faced the “Masada” dilemma: figuratively, commit suicide or die at enemy’s hands.144 The Lords could either allow the Parliament Act of 1911 to pass and lose their absolute veto power, or be packed with new peers that will enact such a measure anyway. PM Asquith and his Chancellor of Exchequer Lloyd George’s move was highly effective. The Lords yielded and chose to vote in support of losing their veto rather than be packed with new peers.145 Thus, the threat of packing the Lords assisted the British to enforce constitutional conventions that protected the nexus between a mandate for political action and elections.
This Essay argues that the British constitutional design is to counter life tenure and veto power with court packing, if needed to protect popular sovereignty. While scholars typically cite Dicey for the proposition that constitutional conventions are not legally enforceable,146 they misunderstand the workings of the British system. Dicey explicitly acknowledged that court packing, or the threat thereof, is justified to guarantee the prevalence of popular sovereignty against a partisan takeover of non-elected veto power. In the third part of his Introduction to the Study of the Law of the Constitution, Dicey dealt with constitutional conventions, and in particular how the Crown and Lords should exercise their discretionary powers; i.e., their prerogatives and privileges respectively. His answer upheld the people’s sovereignty:
The same thing holds good of the understanding, or habit, in accordance with which the House of Lords are expected in every serious political controversy to give way at some point or other to the will of the House of Commons as expressing the deliberate resolve of the nation, or of that further custom which, though of comparatively recent growth, forms an essential article of modern constitutional ethics, by which, in case the Peers should finally refuse to acquiesce in the decision of the Lower House, the Crown is expected to nullify the resistance of the Lords by the creation of new Peerages. How, it may be said, is the “point” to be fixed at which, in case of a conflict between the two Houses, the Lords must give way, or the Crown ought to use its prerogative in the creation of new Peers? The question is worth raising, because the answer throws great light upon the nature and aim of the articles which make up our conventional code. This reply is, that the point at which the Lords must yield or the Crown intervene is properly determined by anything which conclusively shows that the House of Commons represents on the matter in dispute the deliberate decision of the nation. The truth of this reply will hardly be questioned, but to admit that the deliberate decision of the electorate is decisive, is in fact to concede that the understandings as to the action of the House of Lords and of the Crown are, what we have found them to be, rules meant to ensure the ultimate supremacy of the true political sovereign, or, in other words, of the electoral body.147
The famous British political analyst Walter Bagehot similarly acknowledged, “[j]ust as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king—at the will of the people—made the Lords yield to the people.”148 The British model thus identified the House of Lords first, and ultimately institutional packing, as the enforcers of constitutional conventions. The British constitutional convention required the Lords to identify when the Lower House enjoys popular consent for constitutional reform that requires the removal of the Lords’ veto.149 This convention was not left to the whims of the Lords. Rather, the King, at the Prime Minister’s request, had to intervene through threats of—or actual—court packing, if the Lords did not abide by the convention.150 The British understood that no democracy may exist if it is left to the caprice of unrestrained unilateral partisan political power.
C. The Founding Fathers’ Endorsement of Court Packing
When opting to adopt life tenure for federal judges inspired by the Lords’ unique status, the Framers were fully aware of court packing’s use as an antidote against breach of conventions in defense of popular sovereignty. In 1712, facing Whig opposition in the House of Lords, Queen Anne created twelve new peers to enable the parliamentary ratification of the Peace of Utrecht treaties, which ended the War of the Spanish Succession.151 The treaties led to Britain’s emergence as Europe’s foremost commercial powerhouse and expanded the United Kingdom’s North American territories well into modern Canada. While the War of Spanish Succession waged in Europe, the American colonists fought their own joint front with the British and some Native American tribes against the French and Spanish, in what became known as Queen Anne’s War (the second of the French and Indian Wars). Following the war, the Americans found their borders expanded by the Treaty of Utrecht, in which the French ceded several North American territories to the British.152 The Americans were thus well aware of the treaties’ existence and of the methods Queen Anne employed to ratify them.
In fact, in 1776, the Founding Fathers leaned heavily on the Treaty of Utrecht when drafting the Model Commercial Treaty, to serve as the platform the young Republic would use to pursue international relations with European nations. Congress drafted the Model Treaty during the same months as the Declaration of Independence and Articles of Confederation. Daniel Hulsebosch writes:
The committee that drafted the Model Treaty collected compilations of European treaties. Although the conscientious John Adams did most of the drafting, Benjamin Franklin obtained the best single source: the Anglo-French Treaty of Utrecht of 1713. The Anglo-French Treaty of Utrecht was the leading example of liberal treaties designed to promote European peace by fostering relatively unfettered trade in peace and war.153
The Treaty of Utrecht lingered in the American mind after the Model Treaty was completed. The Founding Fathers also referred to it, in 1773, during their negotiations with Britain to end the American Revolutionary War.
Furthermore, the Founding Fathers were not just aware of the creation-of-peers method in its historical context, but even brought it up while crafting the Constitution. They explicitly rejected the idea that the President will enjoy royal prerogative powers such as creation of peers:
Imperial dignity, and hereditary succession—constituting an independent branch of the Legislature—the creation of Peers and distribution of titles and dignities— . . . all these prerogatives, besides a great many more, which it is unnecessary to detail here, (none of all which are vested in the President) put together, form an accumulation of power of immense magnitude . . . .154
And even as these debates took place, the creation of peers remained topical in the global scheme. In fact, while the Founding Fathers fixated on the drafting and ratification of the U.S. Constitution in 1787, King George III, whose rule they rejected in the Declaration of Independence, was busy with the creation of new peers in Britain to promote political agendas.155
The Founding Fathers deliberately opted to allow court packing in the constitutional document. The wording of Article III of the Constitution thus states, “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”156 While the Founding Fathers had learned from their experience with the British monarchy not to grant the Executive permission to pack the Court, they explicitly granted Congress the authority to determine the Court’s size. Hence, the Judiciary Act of 1789 was needed to determine the original number of Justices. The Founding Fathers entrusted Congress with both packing the Court and removing Justices through impeachment. This aligned with ideas discussed, but rejected, in Britain at the time of placing the prerogative to create peers under parliamentary control.157 Indeed, over the course of American history the Court’s size had not just been manipulated multiple times but actually expanded from six members as dictated by the Judiciary Act of 1789 to the nine members it has today.158
The Founding Fathers were not only familiar with the methods of manipulating the Court by controlling its size, they even engaged in court packing themselves. FDR relied on this American history in making his threat to pack the Court. He stated:
Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the Administration of John Adams and Thomas Jefferson—both signers of the Declaration of Independence—Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.159
When facing the first constitutional transition of power from Federalist to Anti-Federalist, the lame-duck President Adams decided to eliminate a vacant seat and downsize the Court to influence its ideology. Adams resorted to court packing through the Judiciary Act of 1801, fully aware of the availability of this constitutional weapon.160 President Jefferson responded by restoring the Supreme Court’s original size and eliminating the new circuit court seats that Adams had arranged.161 The lame-duck President Adams also appointed the Secretary of State, John Marshall, to be Chief Justice, but that appointment was well received broadly, was passed by a voice vote and was not contested.162 The two methods—lame-duck appointments and manipulation of the Court’s size—went in tandem. The Framers understood that they belonged to the same toolkit. This would become the subject of the landmark Marbury v. Madison decision in which the Court needed to rule on the constitutionality of midnight judicial appointments and the Judiciary Act of 1789.163
When the British transferred judicial power from the Lords to the U.K. Supreme Court in 2009, the U.K. Supreme Court inherited the Lords’ role of enforcing constitutional conventions.164 In 2019, British citizen Gina Miller challenged the constitutionality of Parliament’s prorogation on the eve of Brexit and won. The U.K. Supreme Court declared the prorogation invalid, thus frustrating Prime Minister Boris Johnson’s intention to break constitutional convention by preventing Parliament from deliberating on, and potentially blocking, Brexit.165
Conclusion
Constitutional conventions against partisan appointments to the highest judicial court during election time are prevalent in comparative law and are, at times, judicially enforced.166 The United States cannot afford to ignore its constitutional convention against such partisan appointments in light of the life tenure of Justices. While in other countries, court packing was conducted in breach of constitutional conventions, in the United States, court packing is intended to counter such partisan takeover of the Court. This is especially so because “[t]he American system of life tenure for Supreme Court Justices has been rejected by all other major democratic nations in setting up their highest constitutional courts.”167
Senators must be aware that confirming a Justice’s nomination during presidential election times requires either bipartisan consent or the consent of the incoming Senate. Appointing a Justice to the Supreme Court during presidential election time without bipartisan support is a severe breach of American constitutional conventions. They should realize that moving forward with an appointment on partisan lines during such times will legitimize court packing in return. It is incumbent on any would-be-Justice during such times to condition her acceptance on achieving bipartisan consent to her appointment. Senators of either party should publicly commit to not support a partisan appointment to the Court during elections. A partisan appointment should be challenged in the Court for breach of constitutional conventions. Ultimately, if all other enforcement mechanisms fail, court packing is the antidote by design under the American constitutional model.
Postscript
The Senate’s confirmation of Justice Barrett’s nomination to the U.S. Supreme Court based on partisan support alone, when presidential elections were underway, severely compromised the Court’s integrity. It constituted an unprecedented breach of the SCOTUS Bipartisan Convention, which is designed to protect the democratic transfer of power following elections. In April 2021, President Biden appointed a Committee to examine reform of the Supreme Court. This Essay provides the theoretical, principled justification for court-packing in the US. As it is not intended to undo a particular judicial agenda, it does not threaten the Court’s independence. It thus differs sharply from FDR’s plan and motive, which drew serious criticism. Since it is intended to neutralize a partisan takeover of the Court in breach of the SCOTUS Bipartisan Convention, its principled justification should avoid endless tinkering with the Court’s size for partisan ends.
Appendix A (See Attached PDF for Appendix)