Packing the Courts? Let’s Not. (OPINION)

On April 9, President Biden issued an executive order, forming the Presidential Commission on the Supreme Court of the United States. The commission is to be comprised of “bipartisan” experts on the Supreme Court and will examine the following topics: “the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.” And while the proficiency and integrity of the Supreme Court should always be reviewed to ensure corruption doesn’t occur, expanding the Courts will only allow for the Court to fall deeper into partisanship. 

Expanding the size of the Supreme Court is also known as court-packing. Currently, there are nine justices. A 6-3 conservative majority was secured by Republicans with the confirmation of Judge Amy Coney Barrett in October 2020. Barrett was confirmed during President Trump’s last year of office. However, when President Obama tried to push through his own nomination at the end of his term, the Republican Senate blocked it. Her controversial confirmation first sparked the current discussion over packing the courts and was a topic of debate during the 2020 election. 

Expand the court.

— Alexandria Ocasio-Cortez (@AOC) October 27, 2020

To first correct a common misconception, Biden did not refuse to comment about altering the court during his campaign and, in fact, promised to form a committee to “come back to [him] with recommendations as to how to reform the court system, because it’s getting out of whack.” However, Biden did not take a definite stance against court-packing, only stating that he was “not a fan.” He left the door open for discussion further down the road, and a bill proposed by progressive Democrats on April 15 has now widened this door. 

The Judiciary Act of 2021 hopes to expand the number of justices from nine to thirteen. In the press release announcing the act, House Judiciary Committee Chairman Jerrold Nadler (D-NY) said, “There is nothing new about changing the size of the Supreme Court. The Constitution leaves the number of justices to the discretion of Congress, and Congress has changed that number 7 times already throughout our history.” 

The idea of packing the court first came to a head during President Franklin D. Roosevelt’s second term in 1937. Roosevelt was upset that the Court had deemed some of his New Deal plans to be unconstitutional and wanted to find a way to ensure his future endeavors were passed through. He proposed implementing retirement for judges over the age of 70 and that any who remained in their positions would be provided with an “assistant” who would be granted full voting rights. This was a sure way to establish a liberal majority and at the time could have expanded to court to as many as 15 judges. Congress quickly shut down the idea but, as talk of expanding the court becomes more commonplace in the political sphere, the United States finds itself in the same dilemma nearly a century later. 

Since President John Adams appointed John Marshall to be the fourth chief justice, the court has, unfortunately, been political. President Thomas Jefferson (a Democratic-Republican) took great issue with many of Marshall’s decisions, primarily because he had been appointed by a federalist and, therefore, usually ruled in the federalists’ favor. Because judges are human and not thoughtless robots, there will always be an unavoidable bias within the court. However, packing the courts can only lead to an unending power grab to add more justices in their favor that will widen partisan divides. 

Remember that Republicans have lost 6 of the last 7 popular votes, but have appointed 6 of the last 9 justices.

By expanding the court we fix this broken system and have the court better represent the values of the American people.

— Ilhan Omar (@IlhanMN) October 27, 2020

But say this act is pushed through Congress and enacted. Hypothetically, the Supreme Court can now have thirteen justices, and, seeing as Democrats have unified control of both Congress and the presidency, the ratio of judges will change from 6-3 conservatives to 7-6 liberals. An issue will arise, however, when the power dynamic shifts from Democrats back to Republicans. Wouldn’t Republicans wish to resecure a conservative majority on the court? Democrats added justices when they wished to, why shouldn’t Republicans do the same? And so will begin the justice race, in which both parties see just how many seats they can add to maintain a majority. It sets a dangerous precedent that will only lead to the complete politicization of the courts. 

As of 2019, President Biden agreed. He said, “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.” In 1983, Biden called packing the courts a “bonehead idea.”

According to a poll by Mason-Dixon Polling and Strategy, 68% of voters oppose court-packing, 27% support it, and 5% remain undecided. The poll also found that a majority (90%) of Republicans oppose it while, contrastingly, a majority (50%) of Democrats support the idea. However, 68% of Independent voters oppose the idea. 

The revered late Justice Ruth Bader Ginsberg also did not approve of court-packing. “Nine seems to be a good number. It’s been that way for a long time,” she told NPR in an interview. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”

“…[Authority of the Court], like the rule of law, depends on trust. A trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” said current Justice Stephen Breyer in a speech at Harvard University.