Switch in Time 2: Featuring John Roberts in Place of Owen Roberts

 by Michael C. Dorf

A recent Twitter thread by my colleague James Grimmelmann begins: "The current discussion about whether Democrats should expand the size of the Supreme Court if they control the 117th Congress is an important one. But it overlooks something equally important." Prof Grimmelmann then goes on to catalogue some of the many ways in which a Democratic Congress could reshape the law in a great many areas, including voting rights, qualified immunity, antitrust, court access, and much more.

Some respondents pushed back, observing that a very conservative SCOTUS could and likely would limit much of what a Democratic Congress and President accomplished legislatively through a combination of constitutional limits and statutory interpretation. I think that's a genuine worry, although that hardly means that a Democratic Congress and President shouldn't pursue an aggressive substantive agenda.

Here I want to speculate a bit about how the prospects for Court expansion legislation might interact with an aggressive substantive agenda and the Supreme Court's own decisions.

I'll begin with two important caveats. First, I am not taking for granted that Biden will win the Presidential election or that Democrats will win control of the Senate and retain the House. These speculative thoughts are based on the arguendo assumption that those events occur. Second, I don't mean any of these thoughts to be taken as critical of Prof Grimmelmann's thread. I read him to be saying that Democrats need an aggressive substantive agenda, regardless of whether they pursue SCOTUS expansion, not that an aggressive substantive agenda necessarily substitutes for SCOTUS expansion.

Notwithstanding that second caveat, the politics of Supreme Court expansion are likely to be intertwined with a substantive agenda for Congress for at least three reasons.

First, there is the matter of limited time. Pundits often discuss what a new administration accomplishes in its first hundred days because that roughly corresponds with the "honeymoon" period when the public gives the administration and an administration-friendly Congress the benefit of the doubt. A savvy administration and allied Congressional leadership must move with alacrity to implement their agenda. But holding hearings, drafting legislation, and securing support take time. Court expansion would need to be weighed relative to other legislative priorities.

Second, that dynamic will likely interact with the size of the Democratic majority (assuming there is one). If Democrats just barely take the Senate, the most conservative Democratic Senators (Joe Manchin of W Va, Kirsten Synema of AZ) will have more leverage than they would in a 54-46 Senate. And if the most conservative Democratic Senators oppose Court expansion, that will move it down (and perhaps completely off of) the list of Democratic priorities.

Third is the question of support from a putative President Biden. Thus far Biden has mostly refused to say whether he would favor Court expansion, but he has also said he is "not a fan" of the idea. During last week's town hall, he said he would come down more clearly one way or another before the election (never mind that millions of people have already voted). Even if he states a pro-expansion position as a means of responding once the Senate confirms Judge Barrett, Biden is unlikely to make Court expansion a top legislative priority, given his past statements and his temperamental moderation. Running for and (by assumption) winning the Presidency as a caring unifier, Biden would likely make a COVID-19 response and economic stimulus his top legislative priorities. He might sign a Court expansion bill, but it is hard to see him as its driving force.

That could change if the Court decides a blockbuster against Democratic priorities. Suppose that in the spring the Supreme Court holds (against all reason) that the Affordable Care Act is completely void. Even if Congress were to enact new legislation restoring the tax to a substantial non-zero figure, that would not ensure that the Act would then be deemed valid, because one could well imagine that there are now five votes to revisit NFIB v. Sebelius and conclude that even with a non-zero tax, the law is invalid. An incensed Congress could then respond with Court expansion.

But we can assume that most current Supreme Court justices do not want the Court's size to be expanded. What might they do to avoid that fate?

One possibility would be to count on the dynamic I observed above and run the clock. The Court could lay low for a couple of years and hope that Republicans retake a chamber of Congress in the 2022 midterms. At that point, the conservative majority could start undercutting the substantive legislation enacted by the Democratic Congress, but it would be too late for Democrats to respond with Court expansion.

The problem with the lay-low strategy from the Court's perspective is that Congress might be tempted to move more quickly and include Court expansion in the early measures it enacts, even if there are no new SCOTUS decisions that inflame Congressional Democrats. Thus, the Supreme Court might be tempted to go on offense. Drawing on the experience of the 1930s, the Justices could change their substantive tune. Some well-timed moderate to liberal judicial rulings could undercut whatever early momentum exists in Congress for Court expansion.

What does well-timed mean? The Court hears oral argument in the latest challenge to the ACA just after the election. Conceivably, it could issue an opinion upholding the Act before inauguration day in January. If it did, the seeming moderation would be read as reducing the need for Court expansion. Even if the ruling were deemed a politically motivated "switch in time," that still might be enough to stave off Court expansion. However, a decision by mid-January in a major case argued in early November would be highly unusual.

The election itself presents another opportunity for the Court to prove itself moderate, but here the calculations are tricky. If the election is close enough for Trump and his backers in swing-state state legislatures to try to disenfranchise their voters, the Court could be called upon to rule on one or more questions that are crucial to resolving it. A ruling that favors Biden would undercut the case for Court expansion, but a ruling for Trump would, from this perspective, be even better for preserving the Republican majority on the Court, as it would take expansion completely off the table. Accordingly, election cases do not present a likely vehicle for the Court to "switch" in order to "save" itself. They offer something more like the prospect of a Bush v. Gore self-packing than the 1937 move to ward off FDR's Court-packing plan.

That prospect in turn arguably complicates the current strategy for Biden. If he comes out for Court expansion now, that could make it more likely that a conservative majority would rule against him in an election-related dispute. One need not think that the justices are simply crass politically partisan calculators to think that their druthers affect how they view the cases before them. And we can be pretty sure that the druthers of all the Republican appointees are against Court expansion.

Should that be enough to lead Biden to come out against Court expansion even if he might otherwise favor it? The answer to that question turns on how confident Biden is that he will win by a big enough margin that no potentially decisive case reaches the Supreme Court. That's beyond my expertise, so I'll end today's speculations at this place of uncertainty.