Expanding the Supreme Court would be disastrous. We hardly want an arms race in which the party that controls Congress and the White House expands the Court to achieve a majority. It may feel good when the Democrats do it, but it won’t when it’s the Republicans’ turn. 

The problem with the Court is that the system of unwritten rules, of the “gentlemen’s agreement,” is completely breaking down. There have been expansions and nomination fights or shenanigans before in U.S. history, but generally when a justice died or retired a Senate controlled by Party A would grudgingly approve a new justice nominated by a president of Party B — because eventually the situation would be reversed, and you wanted and expected the other party to show you the same courtesy. It was reciprocal altruism. It all seemed fair enough, because apart from a strategic retirement, it was random luck — who knew when a justice would die? 

The age of unwritten rules is over. The political climate is far too polarized and hostile to allow functionality under such a system. When Antonin Scalia died, Obama should have been able to install Merrick Garland on the Court — Mitch McConnell and the GOP Senate infamously wouldn’t even hold a vote, much less vote Garland down, for nearly 300 days. They simply delayed until a new Republican president could install Neil Gorsuch. Democrats attempted to block this appointment, as well as Kavanaugh (replacing the retiring Kennedy) and Barrett (replacing the passed Ginsburg). The Democrats criticized the Barrett case for occurring too close to an election, mere weeks away, the same line the GOP had used with Garland, and conservatives no doubt saw the investigation into Kavanaugh as an obstructionist hit job akin to the Garland case. But it was entirely fair for Trump to replace Kennedy and Ginsberg, as it was fair for Obama to replace Garland. That’s how it’s supposed to work. But that’s history — and now, with Democrats moving forward on expansion, things are deteriorating further.

This has been a change building over a couple decades. Gorsuch, Kavanaugh, and Barrett received just four Democratic votes. The justices Obama was able to install, Kagan and Sotomayor, received 14 Republican votes. George W. Bush’s Alito and Roberts received 26 Democratic votes. Clinton’s Breyer and Ginsburg received 74 Republican votes. George H.W. Bush’s nominees, Souter and Thomas, won over 57 Democrats. When Ronald Reagan nominated Kennedy, more Democrats voted yes than Republicans, 51-46! Reagan’s nominees (Kennedy, Scalia, Rehnquist, O’Connor) won 159 Democratic votes, versus 199 Republican. Times have certainly changed. Partisanship has poisoned the well, and obstruction and expansion are the result.

Some people defend the new normal, correctly noting the Constitution simply allows the president to nominate and the Senate to confirm or deny. Those are the written rules, so that’s all that matters. And that’s the problem, the systemic flaw. It’s why you can obstruct and expand and break everything, make it all inoperable. And with reciprocal altruism, fairness, and bipartisanship out the window, it’s not hard to imagine things getting worse. If a party could deny a vote on a nominee for the better part of a year (shrinking the Court to eight, one notices, which can be advantageous), could it do so longer? Delaying for years, perhaps four or eight? Why not, there are no rules against it. Years of obstruction would become years of 4-4 votes on the Court, a completely neutered branch of government, checks and balances be damned. Or, if each party packs the Court when it’s in power, we’ll have an ever-growing Court, a major problem. The judiciary automatically aligning with the party that also controls Congress and the White House is again the serious weakening of a check and balance. Democrats may want a stable, liberal Court around some day to strike down rightwing initiatives coming out of Congress and the Oval Office. True, an expanding Court will hurt and help parties equally, and parties won’t always be able to expand, but for any person who sees value in real checks on legislative and executive power, this is a poor idea. All the same can be said for obstruction.

Here is a better idea. The Constitution should be amended to reflect the new realities of American politics. This is to preserve functionality and meaningful checks and balances, though admittedly the only way to save the latter may be to undercut it in a smaller way elsewhere. The Court should permanently be set at nine justices, doing away with expansions. Election year appointments should be codified as obviously fine. The selection of a new justice must pass to one decision-making body: the president, the Senate, the House, or a popular vote by the citizenry. True, doing away with a nomination by one body and confirmation by another itself abolishes a check on power, but this may be the only way to avoid the obstruction, the tied Court, the total gridlock until a new party wins the presidency. It may be a fair tradeoff, sacrificing a smaller check for a more significant one. However, this change could be accompanied by much-discussed term limits, say 16, 20, or 24 years, for justices. So while only one body could appoint, the appointment would not last extraordinary lengths of time.

For more from the author, subscribe and follow or read his books.