Unpack the Supreme Court | Opinion

I first suggested over two years ago—and may have been the first to appear on MSNBC's Morning Joe to do so—that it would be perfectly legitimate for Democrats to seek to expand the Supreme Court to 11 justices. By that time, the Republican Senate had not only rode roughshod over tradition by refusing to grant President Barack Obama's nominee, Judge Merrick Garland, even a hearing, but also reduced the number of votes necessary to confirm a Supreme Court nominee from 60 to a simple majority of 51. If the Democrats win the presidency and control of the Senate, I said at the time, they could also, by simple majority, put two new justices on the Supreme Court to compensate for the Republicans' actions.

At that point, many were surprised that expanding the size of the court did not require a constitutional amendment. However, I explained that not only could this be done by an act of Congress alone but the court had fluctuated in size many times before the number nine was finally settled upon.

Judge Amy Coney Barrett's nomination to the Supreme Court and Democrats' possible response have become a central issue in the presidential race. Barrett's confirmation by the Senate, which seems overwhelmingly likely, would create a six-to-three conservative majority on America's highest court, leaving it with an extremely rightward tilt, possibly for decades to come.

Yet the Biden campaign has somehow been put on the defensive, as President Donald Trump has repeatedly stated that Joe Biden will "pack the court" with two new justices if he wins and Democrats take control of the Senate.

So far, Biden has refused to answer the question. At first, he said he would provide his view on the issue after the election. More recently, he promised his answer would come after Barrett's expected confirmation. This ensures the issue will continue to be front and center during the final days of the election.

So let's unpack this "pack the court" argument:

  1. The Republicans have flagrantly cast aside Supreme Court nomination norms three times—keeping an Obama nominee from getting a hearing, let alone a vote, nearly eight months before an election; reducing the Senate voting threshold to push through two confirmations of Trump nominees; and now rushing a third Trump nominee onto the court by having a Senate confirmation vote only days before a presidential election. The hypocrisy of this last action is best demonstrated by the emphatic words of Senator Lindsey Graham, who said in 2016 that if Senate Republicans ever moved ahead with a Supreme Court nomination during a presidential election year, it would be wrong. "You could use my words against me, and you would be absolutely right," he said. Now, as chairman of the Senate Judiciary Committee, Graham is pushing through this nomination when the presidential election is already well underway.
  2. Thus, if a President Joe Biden and a Democratic Senate were to pass legislation to expand the court by two justices, which should be called "The Take Back the Merrick Garland Stolen Seat Act of 2021," it would not be packing the court—but instead unpacking the court. It is Republicans' actions, breaking norms to stuff three seats with right-wing justices, that have been the true exercise in court packing.
  3. Unlike the case of President Franklin Roosevelt, who attempted to pack the court with six new justices to obtain favorable rulings on New Deal legislation, even if the Democrats were to put two new justices on the current court, there would still be a six-to-five conservative majority. Moreover, as opposed to packing a court with justices to move it fully in line with a particular president's agenda, Democrats would be giving Americans a court that operates closer to the center of the political spectrum, with Chief Justice John Roberts probably as the swing vote. A Supreme Court centered in the ideological middle would far better reflect the body politic, unlike what Trump and Majority Leader Mitch McConnell have orchestrated, which is extreme relative to the political and social views of the majority of the country.
  4. It was, in fact, a Republican president who created the precedent for more than nine justices serving on the Supreme Court. During the vice presidential debate, Senator Kamala Harris cited President Abraham Lincoln's decision to defer a vote on a new Supreme Court justice until after the election of 1864, in which he was running for re-election. What she did not mention is that Lincoln, the first Republican president, actually expanded the court to 10 justices, which was later brought back to a nine-justice court.
  5. There is already ample precedent in this country for appellate cases being heard by panels of 11 and even more judges. When discussing "packing the court," it is puzzling why there has been no recognition of the current composition and practices of our appellate courts. Before a case goes to the Supreme Court, it is heard by the U.S. Courts of Appeals. While there is a right of appeal from the U.S. District Courts to the Courts of Appeals, where three-judge panels decide the cases, there is another procedure that allows extremely important appellate cases to be decided "en banc" by those courts. Parties have no right to an en banc hearing—courts grant such reviews on a discretionary basis. Although procedures differ across circuits, in general at least 11 judges participate.
  6. The actual number of federal appeals courts has grown to 12 over recent decades (and the specialized Court of Appeals for the Federal Circuit brings the total to 13). Yet the number of Supreme Court justices, who individually have some responsibility in overseeing the appellate courts, has stayed static.
  7. The Trump-McConnell forces have packed not only the Supreme Court but also the other federal courts, after the Republican Senate blocked a very large number of Obama nominees to the district and circuit courts. This obstruction tactic worked, and Trump has appointed 218 lifetime-serving judges, who now constitute over one-fifth of the entire federal judiciary. Thus, we also need a more centrist Supreme Court to serve as a check on the right-wing extremism that Trump has injected into the lower courts.

When we already have appellate courts deciding their most important cases with 11 judges—with a number of these cases then further reviewed by the Supreme Court—why should nine justices be considered a sacrosanct number? Moreover, given how the workload of the Supreme Court has increased immensely, the court's productivity would also be significantly improved by the addition of two justices, while bringing the number of perspectives for its review process up to the standard of the U.S. Courts of Appeals. Expanding the court is about smart reform and bringing into the court a broader diversity of views—not guaranteeing a particular political outcome.

Why, therefore, is the Biden campaign so defensive about its potential actions in response to the Republicans having packed the courts? There is no legitimate reason, other than the fact that the Trump campaign has done an excellent job of falsely characterizing the Democrats as would-be court packers. So when pollsters ask, "Are you against the Democrats packing the court?" it sounds as if the Democrats are the ones taking inappropriate actions, despite the reality, and the polls reflect this negative view.

It may be too late for the Biden campaign to correct Trump's misleading spin, and so remaining silent until after the election may still be the best answer. However, make no mistake, if the Democrats do win the Senate and the presidency, unpacking the court must be a priority to preserve a centrist Supreme Court (albeit one that will still have a conservative majority). Allowing the Republican packing of the court to define decades of constitutional decisions and civil liberties outcomes is something the vast majority of Americans, when asked the question properly—"Do you favor unpacking the court?"—would clearly support.

Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of Engine Media and is former senior counsel to a congressional committee.

The views expressed in this article are the author's own.