To Pack a Court
“Nine seems to be a good number. It’s been that way for a long time,”
– Ruth Bader Ginsburg
By Brendan Wilson
Partisan rancor reached a new height last week when Amy Coney Barret was sworn in as the 103rd associate justice of the Supreme Court. Republicans cheered and Democrats seethed through the hastened confirmation process that culminated just days before voters participate in the most divisive presidential election since 1860.
On its surface, there is nothing controversial about Justice Barret’s ascension to the court; she is an intelligent, capable judge with well-respected conservative bona fides. In another era, Democrats might have grudgingly confirmed her without the political cage match that we’ve endured for the last month.
But alas, this is 2020, and Democrats are out for blood. In 2016, Republican senators blocked Barack Obama’s nominee to replace Antonin Scalia on the grounds that a Supreme Court vacancy should not be filled during an election year. Republican Senator Lyndsay Graham, chair of the Senate Judiciary Committee, was the most vocal proponent of this policy, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
Whoops, the vacancy that prophet Graham foretold opened with the passing of Justice Ginsburg in September, but he joined the rest of the Republican party in reversing course, saying he would support Trump in “any effort to move forward regarding the recent vacancy created by the passing Justice Ginsburg.”
Hypocrisy! Cry the Democrats, who have been watching the polls and counting their chickens, anxiously awaiting an election result that will deliver them both the White House and the Senate. Should this happen, many advocate “packing the court” in retribution, or adding justices to achieve an ideological “rebalancing.”
The Democrats know they are swimming in shark infested waters but feel this bold, radical initiative has been justified by the shenanigans that robbed them of two court appointments. Thankfully, the Constitution offers clear guidance on a fixed number of Supreme Court Justices.
Just Kidding. It turns out that the Constitution offers no help whatsoever. In Article III Section One, the framers left this responsibility to Congress, perhaps failing to foresee the uncompromising partisan cesspool that it would become.
It all began with the Judiciary Act of 1789, which created a 6-man court. A few years later, President John Adams signed a bill in his final days in office that would reduce court membership to five, denying his political nemesis, Thomas Jefferson, the opportunity to infect the court with his Democratic Republican ideology. Luckily for Jefferson, his party soon controlled Congress, and the number was set back to six.
Over the next 60 years, the nation added justices to keep pace with its westward territorial expansion, eventually reaching 10 in 1863. Three years later, Congress voted to reduce the number to 7 to prevent the hopelessly unpopular Andrew Johnson from exerting his influence on the court. In 1869, Congress reset the number to 9, where it happily stood unmolested until the following century, when Franklin Delano Roosevelt started shaking things up.
The economic devastation wrought by the Great Depression swept FDR and a Democratic Congress to power in 1932. In his first 100 days, FDR signed a salvo of progressive legislation that would become known as his “New Deal,” which created the social safety net as we recognize it today: social security, minimum wages, and unemployment relief. But despite comfortable Democratic majorities in Congress, there was a 5-4 rightwing tilt on the Supreme Court, led by the staunchly conservative “four horsemen.”
The court was a thorn in FDR’s side, first invalidating the National Industrial Recovery Act in 1935. The following year, it struck down the National Labor Relations Act and the Social Security Act, all key new deal initiatives. FDR won reelection in 1936 in the most spectacular political beatdown in American history (523 to 8). Emboldened by victory and a refusal to allow five judges to deny the will of the people, he proposed to add up to six additional justices to the court, thereby diluting the impact of the Four Horsemen. He pitched his court packing plan to the nation in one of his fireside chats, saying, “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government.”
But the scheme was so distasteful that it divided his own party, costing him much of the political capital he had gained with his enormous reelection victory. The Southern Democrats allied with the Republicans, making Roosevelt's second term much less productive than his first. The president caught an enormous break when Justice Owen Roberts swung his vote to the left on several decisions that upheld key pieces of the New Deal. This abrupt ideological shift was dubbed the “switch in time that saved nine.” Mercifully, this shift rendered the court packing plan unnecessary and the bill eventually died in the Senate.
Will a Biden victory this week mean an expanded court? It's difficult to say. Though he declared last year that he was “not prepared to go on and pack the court,” later adding that Americans will live to “rue that day,” he and Kamala Harris have recently deflected any questions concerning court packing, refusing to commit to a specific course of action. Other Democrats are more committal. Chuck Schumer said last month that “nothing is off the table” and Senator Ed Markley recently declared that “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
It may be comforting to look back on our constitutional forbearers as sage men in powdered wigs impervious to the partisan bickering that characterizes our present. The truth is that from the outset, the Supreme Court reeked of the stink of politics. Should Democrats then resign themselves to this reality and pack the court for political gain?
They should not.
First, such a move would cost precious political capital. Forcing through unpopular court packing legislation abhorrent to Republicans and traditionalist Democrats would likely cost support on the remaining legislative initiatives Biden hopes to enact: economic stimulus, pandemic legislation, climate change, and legislation aimed to address systemic racism. FDR’s legislative tidal wave lost momentum after introducing his scheme. Given the unpopularity of court packing among registered voters, why would today be any different?
Second, even if Democrats decide to plow forward, it's highly unlikely that they achieve the supermajority in the Senate required to pass legislation on a party-line vote. This would make the nuclear option of eliminating the filibuster a prerequisite for court packing, rendering the initiative doubly intolerable to Senate traditionalists (e.g. Joe Biden).
Third, packing the court nearly guarantees political retribution. When the tables turn once more, Republicans would add additional justices to rebalance the rebalancing, diminishing the gravitas of the once august tribunal. This is what Justice Ginsburg was referring to when she said, "Nine seems to be a good number. It’s been that way for a long time.”
Finally, Democrats are ignoring the ideological drift of justices over time. John Paul Stevens, Sandra day O’Conner, and David Souter were all appointed by Republicans yet moved to the left as their careers advanced. Even Neil Gorsuch raised eyebrows in 2018 in siding with the liberal wing in Sessions v Dimaya and again in 2020 in Bostocky v. Clayton County.
Packing the court would do significant political harm to not only the Supreme Court itself, but to our republican government. The last four years has seen a significant fraying in the fabric that holds our nation together, leaving us more divided than we have been since the 19th century. If Democrats win the White House, they should set about mending the crumbling bridge between the parties, not setting it ablaze.
Herndon, A., & Astor, M. (2020, September 19). Ruth Bader Ginsburg's Death Revives Talk of Court Packing. Retrieved November 03, 2020, from https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html
Millhiser, I. (2020, June 15). The Supreme Court's landmark LGBTQ rights decision, explained in 5 simple sentences. Retrieved November 03, 2020, from https://www.vox.com/2020/6/15/21291515/supreme-court-bostock-clayton-county-lgbtq-neil-gorsuch
Schwartz, M. (2020, September 19). 'Use My Words Against Me': Lindsey Graham's Shifting Position On Court Vacancies. Retrieved November 03, 2020, from https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914774433/use-my-words-against-me-lindsey-graham-s-shifting-position-on-court-vacancies
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Why Republican judges drift to the left. (n.d.). Retrieved November 03, 2020, from https://www.economist.com/lexingtons-notebook/2010/04/14/why-republican-judges-drift-to-the-left