Court Packing: an Ill-Fated Reform
The United States Supreme Court, often the ultimate arbiter of American civil rights, is an increasingly partisan weapon for the executive and legislative branches of government. The nomination of Amy Coney Barrett to replace the late Justice Ruth Bader Ginsberg has created a strong possibility for a 6-3 conservative supermajority on the court for decades to come. Source.
Should Republicans succeed in confirming Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg —while of course in gross violation of the precedent they established in 2016 — they will create a 6-3 conservative supermajority on the high court and cement a conservative majority for decades to come. Congressional Democrats are powerless to stop this on their own, but suggestions of the once unthinkable have begun to float about: expanding the number of seats on the Supreme Court. This idea, known as court packing, would allow Democrats to rebalance the ideological bent of the court, should they win control of the White House and both houses of Congress this fall. Such a plan would, however, be very difficult to accomplish politically, regardless of who controls the government, and serve as only a short term solution.
While many norms surrounding judicial appointments have been broken in recent years, court packing is truly the nuclear option. Article III of the Constitution does not speak to the size of the Supreme Court, but its current size, nine, has become almost sacrosanct, remaining unchanged since it was set by the Judiciary Act of 1869. Before the Civil War, the court’s size changed with some regularity, from a low of five in 1807 to a high of ten in 1863, but the last notable suggestion to increase its size came when President Franklin Roosevelt proposed the Judicial Procedures Reform Bill of 1937 in order to make the court more amenable to his New Deal programs. Put mildly, it was poorly received and easily defeated, in part due to infighting within his own party and the perception that it was a blatant power grab.
Some prominent Democrats have floated similar plans in recent years. Pete Buttigieg suggested a sweeping reform that would expand the court to 15 and require politically balanced representation, and many presidential hopefuls expressed openness to packing the court, including current Vice Presidential candidate Kamala Harris. There is, however, little reason to think that court packing would be viewed more positively today or be more successful now than it was in 1937.
Many prominent, influential figures, whose support would be needed, have expressed strong opposition. Senators Bernie Sanders (D-VT) and Michael Bennet (D-CO) have previously expressed distaste for changing the court’s size. John Hickenlooper and Mark Kelly, Democrats pursuing Republican controlled Senate seats, also oppose such a plan. Most importantly — while he has refused to go on record since Justice Ginsburg’s death — Joe Biden has opposed the idea in the past, suggesting it would open the door to limitless expansion and erode the legitimacy of the court. Additionally, proponents of the idea would have to overcome significant opposition from the American public. Recent polling from YouGov, conducted since the passing of Justice Ginsberg, suggests that expanding the court is broadly unpopular, with fewer than a third of respondents showing support.
Given this difficulty and the dangerous precedent that would be set by packing the court, it would behoove Democrats to consider alternative plans to depoliticize and bring balance to the court in the long term should they gain power. There is widespread support for a number of possible reforms. Polling performed this year before Justice Ginsburg’s death shows that 77% of Americans support implementing some form of restriction on the length of justices’s terms, across the political aisle.
While it is difficult to implement term limits, they could certainly ease tensions. As Steven Calabresi, a professor of law at Northwestern University, recently argued, staggered 18 year terms implemented by constitutional amendment would ensure that two justices are appointed in every presidential term and that nominations occur outside of presidential election years. A modified version of this proposal is currently being floated in a bill soon to be proposed by Representatives Khanna (D-CA), Kennedy (D-MA), and Beyer (D-VA). It is unlikely to pass at this time, and according to Scott Gaylord, a professor of constitutional law at Elon University, would likely be found unconstitutional because it subverts Article III of the Constitution's guarantee that justices hold their office for life. Democrats should not, however, be discouraged into pursuing the short term political victory delivered by packing the court. They should instead consider long-term, potentially bipartisan reforms.