Would Packing the Court Balance the Scales of Justice?

Photo Credit: Politico

By Isabela Baghdady
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Isabela Baghdady is a freshman in the College of Arts and Sciences at the University of Pennsylvania with plans to study Philosophy, Politics, and Economics.

On September 18, 2020, the American political landscape was transformed: Supreme Court Justice Ruth Bader Ginsburg, an inspiring champion of women’s rights who served the American people with inimitable passion and precision, passed away. The United States not only lost an icon of the 21st century, but saw a change in the ideological balance of the nation’s highest court.

Since RBG’s death, President Trump’s nomination of Amy Coney Barrett to the Court as well as the high probability of a swift Senate confirmation have almost guaranteed the shift of the Supreme Court from a 5-4 to a 6-3 conservative-leaning majority [1]. All the while, liberals’ faith in the judicial system continues to diminish.

Yet, even as trust in the Court dwindles, liberal ideas for judicial reform persist. Since RBG’s passing, Democrats have been echoing calls for expanding the Court, a concept popularly known as “court packing” [2].

The History of Court Packing
The term “Court packing” originated in 1937 when President Franklin D. Roosevelt, frustrated with the Court for stymieing his New Deal legislation, proposed adding a new justice to the Court for every sitting justice over 70 years of age. Roosevelt’s plan had the potential to enlarge the Court from nine to as many as 15 justices [3]. Ultimately, however, FDR’s idea was overcome by widespread controversy, with some conservatives viewing court packing as the epitome of big government abuse [3].

Despite the failure of FDR’s plan, court packing is constitutional and remains possible today. In fact, the number of justices on the Supreme Court fluctuated repeatedly throughout the Civil War era until the Judiciary Act of 1869 fixed the number of justices at nine [4]. Thus, if Democrats win the House, Senate, and presidency, an act of Congress is powerful enough to alter this centuries-long tradition.

Why Are Democrats Calling for Court Packing Now?
Unlike Roosevelt, Democrats today assert that calls for court packing are not a sly pursuit of power but rather, an attempt to balance the ideology of the judicial system. For decades, conservatism has been the predominant philosophy of the Courts. In an effort to safeguard important liberal reforms against reversal—from Roe v. Wade to the Affordable Care Act—Democrats are supporting court packing as a constitutional means of preserving the liberal agenda [2].

Throughout the Trump presidency, judicial reform has gained momentum among Democrats. The two most recent appointments to the Supreme Court—both Trump nominees—were each surrounded by controversy. First was Justice Neil M. Gorsuch in 2017. Gorsuch’s confirmation was met with contention among Democrats in light of Senate Majority Leader Mitch McConnell’s blocking of President Obama’s nomination of Merrick Garland in 2016 [4]. McConnell defended his actions, stating that no confirmation would be entertained until the new president came into office following the 2016 election: “Let’s let the American people decide,” McConnell said [5]. Trump’s second appointment was Justice Brett Kavanaugh in 2018, who was accused of sexual assault, a conflict that further polarized the nation and the courts along partisan lines [4].

Similarly, President Trump’s nomination of Amy Coney Barrett has sparked contention as Democrats accuse McConnell of reversing his view by allowing a Trump nomination just two months before the presidential election [6]. McConnell states: “There was clear precedent behind the predictable outcome that came out of 2016. And there’s even more overwhelming precedent behind the fact that this Senate will vote on this nomination this year” [7].

Today, court packing provides an opportunity to revive liberal influence in the courts, which Democrats argue have been substantially transformed in recent years by a President who did not win the popular vote and a Senate that no longer represents the majority of Americans [4].

What Does Court Packing Mean for American Democracy?
Whether or not court packing is the solution to balancing the Court remains a divisive issue. Several former Democratic candidates for president, such as Elizabeth Warren and Pete Buttigieg, expressed openness to court packing as a means of depoliticizing the Court. “We need to reform the Supreme Court in a way that will strengthen its independence and restore the American people’s trust in it as a check to the presidency and the Congress,” stated Buttigieg [4].

On the other hand, other Democrats have in the past expressed fears about the enduring consequences of court packing. In recent years, Joe Biden cautioned against court packing—if Democrats expand the Court, Republicans will follow suit once in power, thus undermining the integrity of the entire judicial system. “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” Biden stated during last year’s Democratic primary [3].

Court packing has the power to dramatically alter the political makeup of the Supreme Court in the same way that Ruth Bader Ginsburg’s death transformed the Court’s ideological balance. Ultimately, whether or not court packing becomes a reality depends on the outcome of the 2020 election. As Senate Minority Leader Chuck Schumer remarked, “Nothing is off the table” [3].


References:

1. Litman, Leah and Murray, Melissa. “Shifting from a 5-4 to a 6-3 Supreme Court Majority Could be Seismic.” September 25, 2020. https://www.washingtonpost.com/outlook/ trump-ginsburg-conservative-supreme-court-majority/2020/09/25/17920cd4-fe85-11ea-b555-4d71a9254f4b_story.html.

2. Rozenshtein, Alan Z. “The Great Liberal Reckoning Has Begun.” The Atlantic. September 22, 2020. https://www.theatlantic.com/ideas/archive/2020/09/liberal-reckoning-courts/ 616425/.
3. Astor, Maggie and Herndon, Astead W. “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing.” The New York Times. September 19, 2020. https://www.nytimes.com/ 2020/09/19/us/politics/what-is-court-packing.html.
4. Phillips, Amber. “What Is Court Packing, and Why Are Some Democrats Seriously Considering It?” The Washington Post. September 22, 2020. https://www.washingtonpost. com/politics/2020/09/22/packing-supreme-court/.
5. Kelly, Amita. “McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person.’” NPR. March 16, 2016. https://www.npr.org/2016/03/16/470664561/mcconnell- blocking-supreme-court-nomination-about-a-principle-not-a-person.
6. Goldstone, Lawrence. “Judiciary Reform Is Not Revenge.” The Atlantic. September 28, 2020. https://www.theatlantic.com/ideas/archive/2020/09/judiciary-reform-is- not-revenge/616500/.
7. Higgins, Tucker. “Senate Has More Than Enough Time to Confirm Trump Supreme Court Nominee, McConnell Says.” CNBC. September 21, 2020. https://www.cnbc.com/2020/ 09/21/supreme-court-mcconnell-says-more-than-enough-time-to-confirm-nominee.html


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