KATIE DELANEY
Packing the supreme court: new debates and historic precedents
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Katie Delaney
Dec. 1, 2020
With the recent nomination and confirmation of Amy Coney Barrett to the U.S. Supreme Court, resulting in a 6-3 conservative majority, the potential for Democrats to succeed in efforts to expand the number of justices has become a prominent issue in political discourse.
Adding justices to the Supreme Court is most commonly known as court packing, and has not been considered since 1937 when President Franklin D. Roosevelt attempted to do so. To understand the debate about packing the Supreme Court, it is necessary to understand the history of the Supreme Court, and the increasing and decreasing number of justices over the years.
The Supreme Court is the highest federal court in the United States and was established in 1789 by Article III of the U.S. Constitution. Article III, Section 1, begins by broadly establishing the court. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” it reads. Section 1 further explains that judges may hold their offices during “good Behavior,” which has been interpreted as life terms.
Article III also establishes that the Supreme Court has the ultimate jurisdiction over all laws within the United States and members of the Supreme Court are appointed by the president, subject to the approval of the Senate. The Constitution defines the powers of the Supreme Court and the organization of the judicial branch broadly, and does not go into specifics. Most notably, the Constitution does not establish a set number of justices to serve on the Supreme Court, but rather permits Congress to decide the organization of the court. Congress has changed the number of justices six times before settling at the current total of nine in 1869.
The Judiciary Act of 1789 established the first Supreme Court, with six justices, a chief justice and five associate justices. At this time, Supreme Court justices were appointed to sit on federal circuit courts as well as the Supreme Court. So, the court began with six justices so that two could preside in each of the three regions that the circuit courts were divided into.
This number did not last long. In 1801, the number of justices was decreased to five, for political rather than geographical reasons. In 1800, President John Adams lost his seat to Thomas Jefferson, and wanted to deny Jefferson a Supreme Court nomination before leaving office. A month before the election, Chief Justice Ellsworth resigned. After Adams had lost but was still the sitting president, he nominated and Congress confirmed John Marshall as his replacement. Adams and Congress went a step further by passing the Judiciary Act of 1801, which reduced the number of Supreme Court justices from six to five, in an attempt to further limit incoming President Jefferson’s appointments.
However, once Jefferson became president, he and his new Congress repealed the act, restoring the court’s six justices. In 1807, Jefferson and Congress added a seventh justice when it added a seventh federal court circuit.
Decades later, as the U.S. continued to expand westward, President Andrew Jackson added two additional justices in 1837, after Congress expanded the number of federal court districts. The number of justices remained at nine up until the start of the Civil War. In 1863, Congress created a 10th circuit during the Civil War, so the Supreme Court briefly had a 10th justice. President Lincoln pushed for this decision, as he wanted to create a strong anti-slavery majority in the Supreme Court and uphold Union war policies.
After the Civil War, Congress continually clashed with President Andrew Johnson, as he rejected the reconstruction plans of the Radical Republicans in Congress. In 1866, Congress passed the Judicial Circuits Act, which reduced the number of justices to seven, to assure that Johnson would not be able to fill a seat.
In 1868, Ulysses S. Grant was elected president, and since Congress favored him, they increased the number of justices back to nine through a new Judiciary Act. This was the last time that the number of justices was successfully changed.
Since then, there has only been one attempt to expand the Supreme Court, which was by President Franklin D. Roosevelt in 1937. Throughout the Great Depression, Roosevelt enacted a series of legislation called “The New Deal” in order to help America recover from the economic crisis. However, beginning in 1935, the Supreme Court began to strike down several of the New Deal laws. Roosevelt was upset by the court’s decisions, particularly ones that struck down the National Recovery Administration and parts of the Agricultural Adjustment Act and National Industrial Recovery Act.
Shortly after Roosevelt was reelected in 1936, he proposed the Judicial Procedures Reform Bill of 1937, so the court would rule more favorably on New Deal legislation. Under this bill, commonly referred to as the “court-packing plan,” all justices older than 70 would be asked to resign, and FDR would be allowed to nominate an additional judge for any that refused. Since six justices were older than 70, this would have allowed him to name up to six new justices to the Supreme Court, reaching a total of 15.
The unpopular bill was eventually shot down in the Senate, but what truly defeated the legislation was when Supreme Court Justice Owen Roberts switched to a pro-New Deal position. Called “the switch in time that saved nine,” Roberts’ change in opinion created a liberal majority on the court, allowing further New Deal acts to be passed, and ending discussion of court packing.
Eighty-three years later, discussion of expanding the Supreme Court has returned to public discourse. With the recent nomination and confirmation of Amy Coney Barrett to the Supreme Court in the wake of Justice Ruth Bader Ginsberg’s death, the idea of expanding the Supreme Court has gained momentum.
Paul Collins, Professor of Legal Studies and Political Science at the University of Massachusetts Amherst, explained that court packing seeped into mainstream political debate for two main reasons: the refusal by Republicans to hold a hearing for Supreme Court nominee Merrick Garland during the last year of Obama’s presidency, and the death of Ruth Bader Ginsburg and her subsequent replacement.
“There is very little doubt that Democrats are infuriated at the idea of not giving Garland a hearing and a vote in an election year, but then giving Amy Coney Barrett a hearing and a vote a month out from the election,” Collins said. In the eyes of the Democratic Party, “there’s a lot of hypocrisy at play,” he said. Collins also said that not giving Merrick Garland a confirmation hearing and keeping the Supreme Court at eight justices “was a form of court packing itself,” because courts can be packed by expanding or diminishing their size.
Many Democrats have expressed their support for court packing, as they view the act of nominating and confirming Barrett in an election year as hypocritical, and wish to balance the conservative majority in the Supreme Court that resulted from it. In an interview with MSNBC, U.S. Senate Minority Leader Chuck Schumer said that “everything is on the table” if Democrats win a majority of the Senate, including moving legislation that would expand the Supreme Court from nine to 13 members.
U.S. Sen. Ed Markey also weighed in on Twitter in support of expanding the Supreme Court. "Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Markey tweeted.
According to The Washington Post, several of the 2020 Democratic presidential candidates were open to the idea of court packing, including U.S. Sens. Cory Booker, Amy Klobuchar, and Elizabeth Warren, and Vice President-elect Kamala Harris. While several government officials are open to the idea of court packing, there are more opponents of it.
One of the most prominent people who have spoken against expanding the court is President-elect Joe Biden. Recently, Biden has refused to say if he would support packing the courts. While campaigning in Phoenix, Biden said to reporters, “you will know my opinion of court-packing when the election is over.” However, in the past, Biden has voiced his opposition. "I would not get into court packing," Biden said during a Democratic primary debate. "We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all," he added.
Other politicians have spoken out against court packing, wanting to preserve the traditions of the Supreme Court and avoid complications. In September, U.S. Rep. Jim Jordan submitted a resolution to Congress to permanently set the number of Supreme Court seats to nine, and U.S. Sen. Marco Rubio introduced an amendment that would limit the size of the Supreme Court to nine justices. In a Fox News editorial, Rubio stated, “there is something inherently good and important about preventing the further destabilization of essential institutions.”
Since the Constitution does not require a specific number of justices, expanding the Supreme Court is constitutional, but many things would need to occur in order for a bill adding justices to be introduced and passed. For a bill to be passed it would require “enough votes in both houses of Congress and a president who’s willing to sign it. There’s no constitutional issues,” Collins said. In order for Democrats to be able to pack the courts this year, Democrats would need to win the Senate, which would mean winning both of the Georgia runoff Senate races in January to make the Senate 50-50.
The more difficult obstacle is that not all Democratic senators support court packing, but all of their votes would be needed to expand the court, Collins explained. It would also be difficult to gain public support for such a large change, since the Supreme Court has had nine justices for over 150 years. In the end, packing the Supreme Court seems “pretty difficult and unlikely,” Collins said.
Many scholars believe that there are more effective solutions to improve the Supreme Court than adding more justices, because logistically, court packing seems unlikely. Many scholars have debated alternatives such as giving each political party five justices, limiting the terms of judges, and making all 180 federal appeals court judges members of the court, according to Politico.
Addressing alternatives to court packing, Collins said, “staggered 18-year terms, that’s the solution.” This method would consist of a new justice being nominated every two years, allowing each president to nominate two justices in their term. Collins said, “it takes the pressure off of the process: you know when a nomination is going to come up, you know how many nominations any given president will get, and it really puts the power of selecting the Supreme Court back into the hands of the American people by electing the president.”
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Sources:
https://www.supremecourt.gov/about/historyandtraditions.aspx
https://www.history.com/news/supreme-court-justices-number-constitution
https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices
https://constitutioncenter.org/blog/packing-the-supreme-court-explained
https://www.history.com/news/franklin-roosevelt-tried-packing-supreme-court
https://www.foxnews.com/opinion/sen-marco-rubio-supreme-court-needs-to-stay-at-nine-justices-dems-court-packing-plan-is-all-wrong https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/20/915048049/if-republicans-confirm-new-justice-scholars-say-democratic-court-packing-is-poss https://www.washingtonpost.com/graphics/politics/policy-2020/voting-changes/supreme-court-packing/?itid=lk_inline_manual_18