In the aftermath of Justice Ruth Bader Ginsburg’s death, the Democrats reacted by presenting the Republicans — and the country as a whole — with two options. The first is to honor Ginsburg’s “dying wish” and wait until after the upcoming election to nominate her replacement. The second is to respond to the Republican Senate’s constitutionally valid selection of a nominee by moving to “expand” the Supreme Court.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Democratic Sen. Ed Markey (MA) tweeted Friday. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
“If Sen. McConnell and [the Republican Senate] were to force through a nominee during the lame duck session — before a new Senate and President can take office — then the incoming Senate should immediately move to expand the Supreme Court,” Democratic congressional leader Rep. Jerry Nadler (D-NY) agreed Saturday.
The action of “expanding” the U.S. Supreme Court is more commonly known as “packing the court.” Markey and Nadler were not alone in calling for the radical move.
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.
— Ed Markey (@EdMarkey) September 19, 2020
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe
— Rep. Nadler (@RepJerryNadler) September 19, 2020
End the filibuster.
Eliminate the electoral college.
Expand the court.
Term limits for SCOTUS.
Lower the voting age.
Expand the franchise.Take your government back.
But first — VOTE.
— Joe Kennedy III (@joekennedy) September 22, 2020
As Republicans show support for moving forward with a Supreme Court nominee quickly, @AOC tells me if that happens, “we should leave all options on the table, including the number of Justices that are on the Supreme Court.” Adds expanding is “absolutely” an option worth weighing. pic.twitter.com/9KgoyrmUkL
— Adam Harding (@HardingReports) September 19, 2020
What does “packing the court” mean?
Whether described as “packing the court” or “expanding the court,” the end result is the same — the addition of Supreme Court Justices with the deliberate goal of tipping the balance of the Supreme Court in a politically advantageous manner. In this case, the Democrats would “pack the court” with Left-leaning Justices.
The supposed justification for such an action is as a response to the hypothetical scenario in which the Democrats hold the White House and potentially the Senate, but are unable to leverage the Supreme Court as a second legislative body due to its conservative leaning. Rather than waiting for seats to become available and hope that they are able to reverse this alleged bias, they could instead work to pass a bill which would expand the Supreme Court and — overnight — guarantee their political advantage for a generation.
The alteration of the size of the Supreme Court is — by definition — political, and therefore partisan. But it’s also important to note that the size of the Supreme Court is far from constant.
When the U.S. Constitution established the Supreme Court, Congress was left to decide how many justices it should hold. In 1789, The Judiciary Act set this number at six, with one chief justice and five associate justices. In 1807, it increased to seven; in 1837, to nine; and in 1863, to ten.
In 1866, Congress passed the Judicial Circuits Act which shrank the number of justices down to seven and prevented President Andrew Johnson from appointing new justices. In 1869, Congress returned the number of justices to nine, and it has remained that way ever since.
It’s also important to note that this is not the first time a political party has made plans to “pack the court” since the nine-justice precedent was set back in 1869.
In 1937, Democratic President Franklin Roosevelt proposed The Judicial Procedures Reform Bill, which would grant the president power to appoint up to six additional justices to the Supreme Court, one for every member of the court over the age of 70 years and 6 months. What drove this proposal was Roosevelt’s growing frustration with the Supreme Court’s “thwarting” of his New Deal programs on constitutional grounds. Ultimately, Roosevelt did not succeed.
“Expanding” or “packing” the Supreme Court is nothing new, and calls for its implementation will likely reappear any time those who see the Supreme Court as a legislative blocker grow impatient or frustrated. However, while “packing the court” may provide immediate powers, it would only serve to trigger a slippery slope of court expansion in return.
The end result would be the utter rejection of the protections provided by The Founders through their masterful system of checks and balances, instead effectively merging the Judicial Branch with the Legislative Branch, leaving matters of constitutionality to be decided by popular vote. In other words, the Constitution would die.
Will the Democrats actually go there?
The chances that the Democrats would actually take the extreme measure if they were to win the presidency and Senate would appear to be low, though the growing number of Democrats getting on board may change the calculus.
Asked about the idea during the primary last year, Democratic presidential candidate Joe Biden said he was “not prepared” to go there “because we’ll live to rue that day.” As reported by NPR, Biden rejected the idea again a month later. “I would not get into court packing,” 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.”
Biden didn’t address the issue in his comments on the Supreme Court Sunday, while House Speaker Nancy Pelosi (D-CA) sidestepped the question on ABC, saying, “Let’s just win the election. Let’s hope that the president will see the light.”
“Let’s just win the election. Let’s hope that the president will see the light,” Speaker Pelosi tells @GStephanopoulos when asked about some Democrats calling for an expansion of the Supreme Court if Republican approve a Trump SCOTUS nominee ahead of 2020. https://t.co/TkkaJ0jj9y pic.twitter.com/nS13nDbWh0
— This Week (@ThisWeekABC) September 20, 2020