It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions.
But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.
Put bluntly, if the court overturns Roe v. Wade, all bets are off. That ruling would energize the Democratic base before the 2022 midterms, and if the party continues to control the House and the Senate, their voters will bring enormous pressure to bear on the leadership to restore abortion rights. If, as a practical matter, Biden and Democratic leaders in Congress hold the power to pack the court and restore Roe, it might be politically impossible for them to refuse to do so.
The game theory behind the interaction of court-packing advocates, the reform commission, the Democratic leadership and the Supreme Court is intricate — but not so intricate that it can’t be mapped.
The court-packing advocates are still enraged by Republican Senate leader Mitch McConnell’s successful efforts to block the appointment of then Judge Merrick Garland to the court and the separate but equally devastating filling of Justice Ruth Bader Ginsburg’s seat by Justice Amy Coney Barrett.
These two events had different causes. The former was an exercise of raw political power; the latter was a consequence of Ginsburg’s human fallibility and frailty. Together, however, they flipped the balance of the court to the conservative side, probably for a generation. Packing the court, to the advocates, is the only way to reverse or avoid a new era of conservative judicial activism.
The Democratic leadership, led by Biden, genuinely fears that packing the court would destroy the institution permanently as Republicans would do the same when they got the chance. What’s more, moderate Democrats don’t want to bear the political cost of alienating swing voters by such a radical act. At the same time, Biden and the party’s congressional leaders can’t afford to alienate the Democratic base too much by ignoring growing concerns about the court’s conservative turn.
The first implicit job of the commission was to calm the waters by listening to all points of view and recommending caution. The commission’s second job was to send a message to the Supreme Court justices that the idea of court packing is no longer inconceivable, even if it remains disfavored.
One way to do that was through a minority of commission members recommending court packing explicitly. Another way was allowing advocates of the idea to air their views before the commission. The goal here is to encourage Justice Brett Kavanaugh (and maybe even Barrett) to realize that any victory associated with the overturning Roe would be short-lived — and would lead to the destruction of an institution about which they care.
Seen from the perspective of the Supreme Court justices, a serious threat of court packing would be devastating. A handful, such as Justice Clarence Thomas and perhaps Justice Samuel Alito, truly don’t care, subscribing to the Latin maxim “fiat justitia ruat caelum” — let justice be done though the heavens fall.
For most of the justices on both sides of the ideological divide, however, a packed court would represent a court reduced in prestige, legitimacy and power. Justice Stephen Breyer, a pragmatic liberal who wants Roe preserved, has stayed on the court for an extra year to fight the idea because he cares about the institution and the rule of law.
For conservatives, court packing by Democrats would have a further cost: Their crusade to overturn Roe would turn out to have been a Pyrrhic victory. So the conservatives must ask themselves: Is it worth inviting the risk by repudiating Roe?
If Roe is reversed, moderate Democrats will try to deflect the possibility of court packing by introducing federal legislation protecting abortion rights even in states that pass anti-abortion laws. If those laws pass, and the Supreme Court upholds them as constitutional, it might just be possible for the moderate Democrats to assuage the party’s base enough to avoid packing the court.
But if the Supreme Court blocks such pro-life federal legislation, which is certainly possible, the Democratic base will push so hard for court packing that the pressure on centrist Democratic senators will be far greater than the pressure currently on them to vote for the budget reconciliation bill.
The upshot is that the conservative justices must, right now, ask themselves what are the odds that court packing would succeed if they overrule Roe. The best answer is that the risk would be higher than at any time in the last 90 years — no matter what the court reform commission report says. If, however, those justices (or at least Kavanaugh, since it only would take his vote alongside Chief Justice Roberts and the three liberals) back away from the brink and keep abortion rights alive, there won’t be court packing for the foreseeable future.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”