Every morning I would wake up early in Bethesda, Md., say goodbye to my family and drive into downtown Washington, where I would spend most of the day huddled in my cubicle at the U.S. Supreme Court. As tiny, bare and oppressive as it was, the cubicle was mine, a precious symbol of status in the status-conscious capital.
Only four reporters had such cubicles. They represented the New York Times, the Washington Post, the Associated Press and my newspaper, the Baltimore Sun. The quartet was the royalty of the Supreme Court newsroom.
We were the reporters who were there every day, who read all of the hundreds of court decisions and most of the thousands of applications for writs of certiori asking the court to review lower-court judgments. We were the reporters that TV networks, other newspapers and even legal journals relied on to flag major court actions that could change the rule of law and the life of the nation.
Working at the court anywhere from eight to 18 hours a day five or six days a week during the October-June annual judicial terms, I acquired enormous respect for the work the nine justices did. They labored hard and, with rare exceptions, intelligently and honestly, to deliver the closest approximation to justice found on the planet.
This was during the late 1960s and 1970s, when the Supreme Court was at the center of American life, as it once again is today. The reason for this centrality was the same then as it is now: The country was going through a siege of shattering change and bitter confrontation. The issues posed by the civil rights struggle, the Vietnam war, the war on poverty and the impeachment of the president were, if anything, even more traumatic than the battles today over Russian interference, immigration, abortion, elections and health care.
As President Donald Trump prepares to announce on Monday his nominee for the latest Supreme Court vacancy, the nation is one again focused on the power of nine unelected men in black robes to alter the course of the nation. That is one of the few things that have not changed since my time with the court; much is entirely new, including the ground rules for confirming justices.
Sen. Mitch McConnell, the Republican majority leader, said a few days ago that the most momentous action of his 40-year-long public career was his decision in 2016 to prevent President Obama from filling a court vacancy, or even getting a hearing or a vote for Judge Merrick Garland. McConnell decreed for the first time in U.S. history that a president had no right to nominate a Supreme Court justice during an election year. That decision in turn led the following year to Republicans confirming one of their own, Neil Gorsuch, but only after ditching the hoary tradition that at least 60 senators had to approve Supreme Court justices. That voting change effectively ended bipartisanship and, some would say, the political and ideological independence of justices.
Without that rule change, Gorsuch would not have been confirmed and Trump would have been forced to choose a moderate with bipartisan support or to leave the position vacant with only eight justices sitting on the bench.
Now that the precedent has been set for changing the rules to give one party a partisan edge, the Democrats could take a page from the GOP playbook and change the rules once again to suit their own convenience. Here’s how.
If all 50 active Republicans (minus the ailing John McCain) vote for a Trump nominee, they can install anyone they wish over the opposition of 49 Democrats. (However, if they lose a single senator, then they probably can’t, giving enormous power to such potential dissidents as Jeff Flake of Arizona, Susan Collins of Maine and Lisa Murkowski of Alaska.)
However, when the Democrats eventually take back the Congress and the presidency, they can simply add two more justices. At present the court is split 4-4 with retiring Justice Anthony Kennedy casting a swing vote. By October, there will be a 5-4 conservative majority if Trump’s nominee is confirmed.
Democrats have never conceded that McConnell’s 2016 trick was legitimate and insist that the Gorsuch seat was rightfully theirs to fill. So if after the 2020 election, Democrats take control of the presidency and both houses of Congress, they could simply pass a bill to increase the court from 9 to 11 justices, confirm two new members of the court and create a new 6-5 majority.
In the past the number of justices has swung form a low of five to a high of 10. President Franklin Roosevelt tried and failed to increase the number of justices in the 1930s, the last time that ploy was attempted, but this is a far more partisan age and a similar rebellion by Democrats against their own president is hardly plausible.
Of course, Senate Republicans could try to filibuster a bill to increase the number of justices. But a Democratic majority could block a filibuster by a change in the rules, just as the GOP got Gorsuch confirmed by changing the rules to prevent a filibuster. Last year, the issue was whether to eliminate the filibuster on Supreme Court confirmations. The next time the issue could be whether to eliminate the filibuster on the number of justices to be confirmed, not a huge stretch.
Today, with the Republicans having twice played fast and loose with the traditional rules of Supreme Court selection, there is no reason why the Democrats wouldn’t give the GOP a bit of its own medicine and change the rules once again.
The most persuasive argument against such a court-packing scheme is that it would poison the court by making it subject to partisan machinations.
But McConnell’s 2016 stunt and the subsequent Trump nominations have already depleted the force of that argument. A final development in the next year or two could bury it. Here’s how that might unfold.
In talking last week about his prospective court nominee, Trump said he would not ask him (or her, for he is interviewing two women) about the abortion decision Roe V. Wade.
However, he did not say he would refrain from asking candidates about their position on Trump v. the U.S. Department of Justice. After all, he has already urged the FBI director to clear both his national security advisor and himself, so such a request would hardly be out of character.
A case, or more likely multiple cases, posing the president against his own government, is almost certain to find its way to the Supreme Court. The issues that could directly affect Trump personally include whether he can fire the special prosecutor, be subpoenaed by a grand jury and forced to testify, be indicted for crimes, be jailed if convicted and ultimately pardon himself.
These questions have never been answered by the Supreme Court, and at least some of them will probably come before the new justice Trump plans to nominate July 9. To be absolutely clear, Trump is choosing the person who may well cast the deciding vote on his own fate.
If a bitterly divided, highly partisan 5-4 court absolves Trump, with Trump’s two nominees giving him the majority, all bets would be off on the future of the Supreme Court. A partisan court-packing scheme in 2021 would be tragic for the court and for the country as a whole, but it would be the logical consequence of the downward spiral launched by McConnell two years ago.