The Democrats want to increase the number of justices to “balance” the Court. The Republicans call it “court packing.” Who’s right? Here’s some background followed by a few opposing views published in the media, and this blog’s opinion...

Background

The U.S. Constitution authorizes Congress to decide how many justices should make up the Court. The Judiciary Act of 1789 set the number at six. Congress has since changed the number five times: in 1807 it increased the number to seven; in 1837 to nine; in 1863 to 10; in 1866 back to seven (to prevent President Johnson from appointing a new justice), and in 1869 the number was raised to nine, where it still stands.

In 1937 President Franklin Roosevelt attempted to raise the number of justices, but Congress didn’t go for it. FDR wanted a court more friendly to his New Deal programs. He said he “seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law’.”[1] But the President’s attempts were defeated by the Chief Justice and members of his own party. Chief Justice Hughes sent a letter to Congress (co-signed by a liberal justice, Louis Brandeis) that refuted the President’s logic, arguing that “more judges would make for inefficiency and delay.” The Senate Judiciary Committee reported that the President’s “court-packing plan,” as it came to be known, was “an invasion of judicial power such as has never before been attempted in this country.” It recommended that the plan “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Current Debate

In April 2021, Democrats announced their plan to expand the Supreme Court from nine to 13 justices. They want a more balanced court, since it currently has a 6-3 conservative majority after President Donald Trump’s appointment of three new justices. Republicans quickly denounced the plan as “court packing.” The Democratic Chairman of the House Judiciary Committee responded, “We are not packing the Supreme Court, we are unpacking it.” He said their bill would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.”[2]

Below is the ongoing debate. Summaries of arguments in favor or against the Democratic measure are presented in the order of their appearance in the media.

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“The Supreme Court Shall Be Expanded and Its Powers Limited” by Barry P. McDonald, law professor at Pepperdine University. (The New York Times, August 4, 2021)[3]

The New York Times asked several legal scholars to recommend amendments to the Constitution in light of the fact that the last update to the document was 50 years ago. Professor McDonald proposed expanding the size of the Supreme Court to 16 Justices, allocated in a geographically uniform manner. He also recommended limiting the justices’ term to 15 years, and requiring a two-thirds majority to declare laws unconstitutional.   

McDonald argued that “the framers of the Constitution could not have seen how much the less representative branches of our democratic republic — the executive (elected by nonpopular Electoral College vote) and the judiciary (appointed for life) — would hold a grip on governing power. This has left Americans engaged in bitter power struggles to control the Presidency and Supreme Court. This amendment would return important policy decisions to the people rather than have them decreed by life-appointed judges devising vague constitutional provisions.”

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“The Supreme Court Needs to Be Cut Down to Size” by Jamelle Bouie, columnist. (The New York Times, July 23, 2021)[4]

Reporting on the proceedings of the Presidential Commission on the Supreme Court of the United States appointed by President Biden, Bouie wrote: “Supreme Court reform is not on the horizon. There is no popular movement to reshape the institution, and too many on the elite end — on both sides of the political divide — are too invested in the status quo.” But he favors expanding the size because in many rulings “the court has been a hindrance in the fight for equal rights,” and because the justices’ indefinite tenure makes the court “undemocratic.”

Bouie concluded: “This idea, that the court should work with our democratic aspirations and not against them — and that we should not hesitate to change and experiment with the court should we find ourselves struggling against it — is practically verboten among mainstream politicians. But it is a critical part of our political heritage…”

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“Mason-Dixon Poll: Americans Reject Court-Packing” by James Freeman, columnist. (The Wall Street Journal, April 23, 2021)[5]

Freeman reported: “By a large margin, Americans oppose the idea of increasing the number of justices serving on the U.S. Supreme Court. That’s according to a new nationwide survey of 1,100 registered voters conducted by Mason-Dixon Polling and Strategy.

“Poll participants were asked the following question: Do you feel President Joe Biden should or should not back a plan proposed by Congressional Democrats to increase the number of Justices of the Supreme Court of the United States from nine members to thirteen members?

“A full 65% of respondents said he should not, while just 31% said that he should and 4% weren’t sure.”

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“Democrats’ Push to Expand the Supreme Court May Backfire” by Jonathan Bernstein, columnist. (Bloomberg, April 15, 2021)[6]

Bernstein wrote, “As for the push by congressional Democrats to add four justices now, it’s hard to see the point. Their threat to play constitutional hardball just as viciously as Republican leader Mitch McConnell isn’t going to impress anyone if those Democrats don’t have anywhere close to the votes to back up their threat. Nor is it likely that seeking four new justices will increase pressure to compromise and, say, expand the court by one or two slots.

“The effort is far more likely to backfire, giving Republicans an easy target to rile themselves up over, while only frustrating any Democrats who think there’s any serious chance they can succeed.”

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“Pack the Courts” by Larry Kramer, former Dean of Stanford Law School. (The New York Times, October 27, 2020)[7]

Writing before the presidential election, Kramer argued, “President Trump and the Republicans are unapologetic about discarding longstanding cooperative rules for making judicial appointments. Should they lose the election after succeeding in putting Judge Barrett on the court, it becomes incumbent upon Democrats to respond in kind.”

“Adding judges would be a political response to a political act. But the extremes to which Republicans have been willing to go leave the Democrats no other choice. Not for revenge or because turnabout is fair play, but as the only way back to a less politicized process.”

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“Keep the Courts the Same” by Randy Barnett, professor at the Georgetown Law Center. (The New York Times, October 27, 2020)

Professor Barnett wrote: “In the past two decades, both Republicans and Democrats have repudiated several important Senate norms governing ‘advise and consent’ to judicial selection. First came the Senate Democrats’ widespread use of the filibuster to oppose President George W. Bush’s judicial nominations. When Republicans did the same to President Barack Obama’s judicial nominees, Democrats changed Senate rules by a simple majority, or what was called the ‘nuclear option’ — itself a violation of a Senate norm — to abolish the filibuster for lower-court judges.

“Then it was the Republicans’ turn to escalate. First, they denied Judge Merrick Garland of what had come to be a Senate norm in the 20th century: a hearing and a vote on his Supreme Court nomination — leaving the seat open for 11 months. They then used the ‘nuclear option’ procedure to end the filibuster for Supreme Court nominations.

“Bad as these breaches to Senate norms have been, they did not alter our most fundamental constitutional norms.

“For over 150 years, the Supreme Court has consisted of nine justices, a number set by Congress. This norm of nine is supported by another that is more fundamental: the norm against changing the number of justices solely to achieve a partisan or ideological advantage. Violating this norm is called ‘court packing’.

“The aim of court packing, then and now, is to enlist the court as a politically partisan actor. Once packed, the court will let the partisan majorities in Congress that packed it exercise unconstitutional powers; and it will impose the ideological agenda of one party on states that are controlled by its rival.

“But once the norm against court packing is gone, there is no limit on how often it will be used by each party when it controls both Congress and the Presidency. If Democrats expand the number of justices in 2021, Republicans will do the same when they have the power.

“The rulings of such a court would be rightly be perceived as entirely dependent on the will of the political branches. Once politicized in this way, it is hard to see how the perceived legitimacy the Supreme Court as a court of law could be sustained — or why a court so composed should have power to review the constitutionality of laws.”

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“Should We Restructure the Supreme Court?” by Russell Wheeler, Visiting Fellow. (Brookings Institute, March 2, 2020)[8]

Wheeler wrote: “Adding seats to the court could precipitate a game of tit-for-tat. Upon gaining control, one party would expand the court, and after the next election, the other party would slim it back down to size or enlarge it even more.

“Both parties have undermined the guard rails that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.”

This Blogger’s View

The politicization of the Supreme Court is a natural outcome of Congress’s abdication of its role. When matters are not settled legislatively and get pushed onto the courts for constitutional wrangling, the judges’ political views become important.

But it’s a myth that the Supreme Court Justices vote along political lines. In the last 20 years, nearly 75% of the Court’s judgments have been unanimous or secured overwhelming majorities; only 19% were 5-to-4 split decisions.[9] Chief Justice John Roberts pointed out in 2019 that of the Court’s 19 decisions that year, only seven divided along ideological lines.[10]

The battles over the Justices’ appointments show how the Judiciary is also a democratic institution. “It is necessary to introduce the people into every department of government,” wrote Thomas Jefferson. “This is the only way to insure a long-continued and honest administration of powers.”[11] The American people are brought into the Judiciary when the President and Senate go through their selection process. Grueling confirmation fights allow the public to learn about the judges’ backgrounds, prejudices and biases.

Proposals to expand the Court would only worsen its politicization. Appointment battles would get nastier, and adding to the number of seats would begin a tit-for-tat, because each party in power would expand or contract the Court to suit its own agenda. Even more dangerous is that a greater number of Justices would require separate benches, opening the Court to charges of bench fixing, like that often seen in other countries.

–Bhanu Dhamija

[1] https://constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2

[2] https://www.npr.org/2021/04/15/987723528/democrats-unveil-long-shot-plan-to-expand-size-of-supreme-court-from-9-to-13

[3] https://www.nytimes.com/interactive/2021/08/04/opinion/us-constitution-amendments.html

[4] https://www.nytimes.com/2021/07/23/opinion/supreme-court-commission-court-packing.html

[5] https://www.wsj.com/articles/mason-dixon-poll-americans-reject-court-packing-11619200597?page=4

[6] https://www.bloomberg.com/opinion/articles/2021-04-15/democrats-efforts-to-expand-supreme-court-may-backfire

[7] https://www.nytimes.com/interactive/2020/10/27/opinion/supreme-court-reform.html?action=click&module=RelatedLinks&pgtype=Article

[8] https://www.brookings.edu/policy2020/votervital/should-we-restructure-the-supreme-court/

[9] https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/

[10] https://www.reuters.com/article/us-usa-court-chiefjustice/u-s-supreme-court-not-politicized-says-chief-justice-roberts-idUSKBN1WA08F

[11] To Arnoud, 1789; Padover, S. (1939). Thomas Jefferson on Democracy. New York: Hawthorn Books. p.62