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Dem Proposals to Shake Up Court May Fall Flat, Legal Experts Say

June 7, 2019, 7:23 PM

Expanding and making the U.S. Supreme Court less political, as some Democratic presidential candidates suggest, may be too complex as a campaign theme to motivate their base and may actually wind up helping President Donald Trump get re-elected.

Law and political science experts raised those points on Friday in a discussion on political strategy and the concept of courts as a mechanism for progressive change at the American Constitution Society’s annual convention in Washington.

While Republicans have done so successfully, Democrats historically haven’t made courts a campaign issue nationally. But some are testing the waters with these themes in early caucus and primary states with party politics shifting left.

Progressives are still upset over the refusal of Senate Republicans to consider the nomination of Obama Supreme Court nominee Merrick Garland in 2016 and the appointment of Brett Kavanaugh, despite the partisan furor over sex assault allegations from his high school days that he has denied.

They’re also chaffing at high court rulings in recent years like Shelby County v. Holder, which curtailed the effectiveness of the Voting Rights Act, and Citizens United, which flooded elections with outside spending.

Moreover, Democrats fear the justices are positioned to overturn Roe v. Wade, which legalized abortion rights, and that reelecting Trump could give him a third lifetime Supreme Court appointment, if he doesn’t get it before the election.

Democratic proposals for the Supreme Court include “packing,” or expanding the number of justices, imposing term limits, and limiting the number of appointments.

But legal and political science experts speaking at Friday’s panel were skeptical.

NYU law professor Bob Bauer said the reforms are so complex that it isn’t clear the issue is capable for bring thousands of voters to the ballot box.

Neil Siegel, a Duke law and political science professor, worries that such conversations are making progressives part of an unwitting conspiracy to whip up the other side’s base and reelect the president.

And University of Chicago law professor Aziz Huq went so far as to say that progressives should give up on the idea that courts can be a mechanism for progressive change.

Others, however, believe the changes could be good for progressives, and that discussing them could help educate the left on the importance of the Supreme Court and the judiciary.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at