Page:EO 14023 Commission Final Report.pdf/82

 days before the election of 2020, Republicans quickly confirmed President Trump’s nomination of Justice Barrett to fill the seat.

Calls for expansion in response to these developments did not begin immediately. Even after Republican Senators refused to act on the Garland nomination and eventually confirmed Justice Gorsuch instead, Democratic critics who accused Republicans of “stealing” a Supreme Court seat largely refrained from calling for Democrats to respond with a Court-expansion plan. Indeed, references to “Court packing” consisted primarily of arguments that Republicans themselves had in fact “packed the courts” by refusing to act on the Garland nomination and by moving swiftly to confirm President Trump’s nominations to the lower federal courts.

Calls for and by Democrats to expand the size of the Court first appeared in substantial numbers upon the announcement of his retirement by Justice Kennedy, who had long been seen as the median Justice on a closely divided Court, and during the subsequent controversial nomination process of Justice Kavanaugh. These calls increased in late 2020 when Senate Republicans confirmed Justice Barrett, with Democrats arguing that Republicans had contradicted their own prior arguments that Justices should not be confirmed in close proximity to a presidential election. According to news accounts, “[a]s soon as it became clear that the Republican-controlled Senate would almost certainly confirm Judge Amy Coney Barrett, creating a 6–3 conservative majority on the court,” a number of Democrats “argued that if Democrats won in November, they should seriously consider increasing the number of justices.” Public discussion of Court expansion surged noticeably between 2019 and 2020. In 2020, more than 400 articles appeared in the New York Times, Wall Street Journal, Washington Post, and USA Today invoking the term “Court packing” in the context of the Supreme Court, in contrast to approximately 100 articles in 2019.

Proponents of expansion who point to this series of events argue that the addition of new seats to the Supreme Court, at the next opportunity, by a Democratic President and Congress, could help restore the balance on the Court that was disrupted by significant norm violations in the confirmation process, thus protecting the legitimacy of the Court. Some of those who argue for expansion in light of recent events emphasize that they are not motivated by partisan politics but rather by a commitment to the protection of longstanding norms and important constitutional rights. They worry that the current conservative supermajority established by the recent norm violations threatens to take the law, and particularly federal constitutional law, in a still more troubling direction than where it was already moving—perhaps by reversing or continuing to revise longstanding precedents in the areas of reproductive rights, racial justice, workers’ rights, the regulation of guns, religion, administrative law, voting rights, and