Let's talk about Court-Packing

Written by Sofia De Leon

With the recent confirmation of Justice Amy Coney Barrett, the idea of packing the Supreme Court is looking more realistic. Even before her confirmation, there was talk of expanding the Court as retaliation for a rushed filling of the late Justice Ruth Bader Ginsburg’s seat before the election. Both presidential candidate Joe Biden, and his running mate Kamala Harris refused to answer whether they support court-packing when asked during the debates. Biden later stated in an interview that voters “don’t deserve” to know his stance on the subject and that he will not share his position until after the election.1 With no clear response on whether a Biden administration would proceed by packing the Supreme Court, it’s important to consider what court-packing means and its plausible implications.

Court-packing is increasing the number of judges on a court; the current target is the Supreme Court, the highest court in the United States. The Constitution does not state that there must be a fixed number of justices, and that number fluctuated quite a bit in our nation’s early history, with the last attempt to expand the Supreme Court having been made by President Franklin D. Roosevelt in 1937. In an effort to pass New Deal legislation that had been struck down by the Court for unconstitutionality, Roosevelt attempted to sway Congress into allowing the appointment of up to six new judges, ultimately an unsuccessful feat.2 This idea began gaining traction again after Senator Mitch McConnell refused to hold a vote on President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016.

Several Democrat lawmakers have openly expressed their full support for packing the court. Representative Jerrold Nadler urged the incoming Senate “should immediately move to expand the Supreme Court.” “It’s not just about expansion,” argued Senator Elizabeth Warren, “it’s about depoliticizing the Supreme Court.”3 The belief is that adding extra justices makes it more fair and politically balanced. Supporters of court-packing want to add seats for judges that will vote more in line with their beliefs. This “depoliticizing” would ease the power struggle between branches of government, as the party in power controls which way the court will lean when voting.

There is strong resistance to packing the court from Republicans in Congress and even moderate Democrats. Supreme Court expert Russell Wheeler claims it “will be a severe blow to the legitimacy of the Supreme Court,” noting that voters will see it as compromised.2 In his resolution to Congress to keep the number of Supreme Court justices at a fixed nine, Representative Jim Jordan established that court-packing “would undermine our democratic institutions and destroy the credibility of our nation’s highest court.”3 One leading argument from the opposition is the number of justices can continue to expand with each president who takes office, turning the court into a partisan tool for the current administration. Adding seats each election cycle to change political dynamics delegitimizes the Supreme Court, resulting in serious ramifications when it comes to checking presidential and congressional power.

But how do the American people feel about court-packing? There is somewhat bipartisan agreement on the issue, as a recent poll found only 34% of Americans support the idea. Although the vast majority agreed the seat should not have been filled until after the election, there was more support (42%) for the immediate nomination and confirmation of a Trump-appointee than there was for packing the court.1 Despite the openness to conversation and support among Democrats in Congress, it seems voters are not enthusiastic about court expansion.

Justice Ruth Bader Ginsburg, in an interview in 2019, strongly affirmed, “If anything would make the court look partisan, it would be that - one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them too.’” Ginsburg believed court-packing was a “bad idea” back when Roosevelt tried it. She envisioned it making the court a partisan institution, damaging impartiality, and public trust.4 The independence of the judicial branch is imperative to our system of checks and balances; a compromised court may fail to perform checks of executive or legislative power due to political favoritism. “We are blessed in the way no other judiciary in the world is. ...[T]he safeguards for judicial independence in this country, I think, are as great or greater than anyplace else in the world."

References

1. Solender, Andrew. “Biden Says Voters 'Don't Deserve' To Know Stance On Court Packing.” Forbes, Forbes Magazine, 10 Oct. 2020, https://rb.gy/fsvdes

2. Phillips, Amber. “Analysis | What Is Court Packing, and Why Are Some Democrats Seriously Considering It?” The Washington Post, WP Company, 8 Oct. 2020, www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/.

3. Herndon, Astead W., and Maggie Astor. “Ruth Bader Ginsburg's Death Revives Talk of Court Packing.” The New York Times, The New York Times, 19 Sept. 2020, www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html.

4. Totenberg, Nina. “Justice Ginsburg: 'I Am Very Much Alive'.” NPR, NPR, 24 July 2019, www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.

Image: United States Supreme Court (front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett Kavanaugh. (Photos: Mark Wilson, Ken Heinen & Chip Somodevilla/Getty Images; Illustration: Ian Hurley/Pacific Standard)