A newly-revised bombshell paper by four school law professors finds Democrats are unlikely to be able to regain majority control of the U.S. Supreme Court for four more decades, until 2065, unless they expand the number of justices on the nation’s highest court.
That finding follows weeks, and indeed years, worth of allegations of corruption against the conservative jurists themselves, including Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, the spouse of Chief Justice John Roberts, and earlier, Antonin Scalia.
Political strategist and former Media Matters vice president Jamison Foser notes this would mean “96 consecutive years of a Republican Supreme Court majority.”
“The Endgame of Court-Packing,” is a paper that “uses simulations based on assumptions about the results of elections, justice retirement, etc to predict what might happen with the Supreme Court’s composition for the next century,” notes one of its authors, Washington University in St. Louis School of Law Professor Daniel Epps, a “a nationally recognized expert on the Supreme Court” according to his bio.
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Revealing how just one decision can change the course of history, Epps on social media points to Justice Ruth Bader Ginsburg, who died on September 18, 2020 and was replaced just weeks later by Republican President Donald Trump, just before the election he lost.
Had Justice Ginsburg “retired under a D[emocratic] president (or had [Merrick] Garland been confirmed) Democrats would likely have retaken control by 2029, and would control the Court for about half of the next century,” Epps writes.
One of the paper’s authors, Harvard professor Maya Sen, frames their most concerning finding this way: “To bring this home,” she writes, “an 18 year old today will likely not see a Democratic-appointed majority on the Supreme Court probably until their 50s or 60s,” and, “people in their 40s right now will probably never see another Dem-appointed majority in their lifetimes.”
While the papers authors use the term “court-packing,” widely viewed as a negative expression of the concept of adding more justices to the nation’s highest court, the concept dates back at least as far as 1937, when President Franklin Delano Roosevelt proposed a plan to expand the number of justices to possibly 15.
Rutgers Law School professor David Noll in October of 2020 wrote that Army Coney Barrett’s appointment to the U.S. Supreme Court “is classic court packing. The president nominated a hardline conservative who appears to question major parts of U.S. constitutional law. And the Senate majority changed its procedural rules – invented to deny Merrick Garland a hearing – to ram through the nomination as people were voting.”
“If Democrats respond to the Barrett appointment by expanding the size of the Court, the immediate effect will be to further diminish the Court’s standing and make it hard for anyone to take the Supreme Court seriously,” he wrote, unaware of the corruption scandals that would be swirling around all the right-wing justices just a few years later.
“Paradoxically, I think that’s a good development. Restoring a sense of balance to the Court will require Republicans and Democrats to come together and agree on new rules for how justices are chosen and the kind of jurists who serve on the Court.”
Others have proposed expanding the Supreme Court to 13, which would make more sense because not would accurately reflect the number of federal circuits, which the Supreme Court justices oversee.
In 2021, four Democratic members of the House and Senate called for expanding the court by four seats.
“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Senator Ed Markey (D-MA) said in a statement that year. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities.”
“Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court,” said then-House Judiciary Chairman Jerry Nadler. “But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression, and I am pleased to join my colleagues in introducing the Judiciary Act of 2021.”
The 56-page paper‘s authors are Adam Chilton, University of Chicago – Law School; Daniel Epps, Washington University in St. Louis – School of Law; Kyle Rozema, Washington University in St. Louis – School of Law; and Maya Sen, Harvard University – Harvard Kennedy School (HKS).
Image: Official White House Photo by Andrea Hanks via Flickr