When Supreme Court Justice Ruth Bader Ginsburg died this year, Democrats — foremost among them progressive Representative Alexandria Ocasio-Cortez — advocated expanding the size of the Supreme Court. The point was to counterbalance what became a 6-3 conservative majority after President Trump’s appointee, Amy Coney Barrett, was confirmed.
This is an idea called “court-packing.” It’s been floated before, but never really put into practice in its most extreme form. The size of the Supreme Court hasn’t been altered at all since 1869, and before then it was changed only by one or two judges at a time.
Americans are wary of court packing when polled, in part because of its huge and in some cases uncertain potential consequences. It’s a bit like tinkering under the hood of America’s republic: if you’re going to start moving essential parts of our constitutional machinery around, people want assurance that you know what you’re doing. When elected representatives start proposing a full-engine retool, their constituents often start asking just how carefully they’ve thought this thing through.
Now, the Supreme Court’s size is not set in stone by any law. The Constitution gives the president the right to nominate judges, but it tasks Congress with determining the size and shape of our Supreme Court. They did this for the first time in 1789 with the Federal Judiciary Act, which created the Court and set the number of Justices at six. That number was reduced and raised several times throughout the 1800s until finally, not long after the Civil War, it was set at nine by the Judiciary Act of 1869.
For a long time afterward, no one touched that number — and for good reason. Playing tug-of-war with the Court had by that point become a way for presidents to expand their power and influence. In 1801, President John Adams and the Federalists in congress had taken a parting shot at their successors, Thomas Jefferson and the Republicans, by hastily stuffing the courts full of appointees and then reducing the number of Supreme Court judges from six to five. It was a last-ditch effort to keep Jefferson from leaving his mark on the country, and of course it was futile: under the Jefferson Administration, Congress saw Adams and raised him, first returning the number of judges to six and then raising it to seven in 1807.
Once that game got going, the potential for abuse and escalation became apparent — especially as sectarian tension tightened and finally snapped into outright Civil War. Two new Justices were added in 1837 under Andrew Jackson, and a 10th during the War itself, until finally congress fixed the thing at nine once peace settled in. It’s not hard to imagine that this would have been a relief: the War, after all, had driven home how miserably violent and bitter contests over the structure and character of the country can become.
Hundreds of thousands of Americans lay dead at one another’s hands after an unresolvable conflict over, among other things, the power of the president relative to the states. Fixing the rules of the Court in place gave a measure of stability to that question going forward: at least now, everyone knew what the rules were. As in sports, so in politics: if everyone believes the game is fair, the losing side is more ready to take its licks and fight another day. Keeping presidents from helping themselves to more judges was one way to calm everybody down about the stakes of presidential elections.
No one disturbed that new peace until President Franklin Delano Roosevelt in 1937. Frustrated with his inability to get progressive New Deal legislation past the Court, Roosevelt proposed the Judicial Procedures Reform Bill, which would have let him add as many as six new Justices — one for every sitting member of the Court over the age of 70 years and 6 months. This was court-packing in its most essential form. It failed, although Roosevelt eventually got his progressive Court through the usual means of appointing new judges when old ones died.
Joe Biden has resisted saying whether he wants the Court packed — his actual words were that the people “don’t deserve” to know his views on the issue until he reveals them in office. He then said that he’d establish a commission to make “recommendations on how to reform the court system, because it’s out of whack.” It’s an idea that’s found favor with far-Left senators such as Elizabeth Warren, but conservative scholars have expressed extreme concern that what this amounts to is a radical court-packing scheme beyond Roosevelt’s wildest dreams.
The Warnings of History
What the history of court-packing shows is that efforts to change the shape of the Court feed and express the very worst impulses of American leadership: they represent the extremes of arrogance and partisanship. In the case of Roosevelt, court-packing reflected the perceived excesses of Progressivism: here was a president unwilling to let a little thing like the fabric of the Constitution or the will of the benighted people get in the way of his righteous vision for a perfect future.
In our own day court-packing looks, if anything, like an even more disastrous prospect than it was in 1937. The instability entailed in leaving an enormous center of power up for grabs to any president who chooses threatens to intensify our now-raging civil feud.
In the past, at least, those congressmen who did change the number of Justices on the Court set a fixed number. Everyone knew what that number was, and even if it changed it would change to another definite, reliable amount. But even that was too volatile: the minute presidents realized they could get Congress to open those doors, they started squabbling over the Court like dogs over a bone.
What was so galling about Roosevelt’s plan compared with all that went before it was the open-endedness of it: who knew just how far he was eventually hoping to go in bending the Court to his whims? “Up to six” new judges for now — but what would stop him from adding more if he didn’t get his way the first time around? Now we have a man who proposes not even to tell us what, exactly, his plans for the Court are — just that he thinks it’s “out of whack” and needs fixing under his administration.
If the danger of such proposals increases during times of great civic strain, then there could hardly be a worse time to pack the courts. We are as close to one another’s throats now as we have ever been, with the exception of those terrible bloody years in the 1860s. Back then, we learned the hard way to keep the ground on which our regime is built as stable as possible. Now, when even Supreme Court confirmation hearings have become extravagant show trials, when rioters and looters take to the street at a moment’s provocation, can there be little doubt that making open-ended proposals to transform the Court is about as safe as playing basketball with a hunk of napalm?
The Founding Fathers themselves were supremely wary of this kind of practice. Alexander Hamilton, in his defense of the Constitution’s judicial system, wrote that:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
In other words, if the Court is going to be restrained within the bounds of the Constitution, it has to be kept as impartial, as free from political attachments, and as true to its commission as can be. The consequence of court-packing is likely to be just the opposite of this: it will invite each new president to wield limitless power over an army of Judges uniquely loyal to him. It will turn the courts — the one place in America where every citizen is meant to stand on a shared bedrock of truth and justice — into one more puppet of the Oval Office.
What’s at Stake
History tells us that once the courts fall under the sway of radicals, there is hardly a limit to how bad it can get. In Ancient Rome, historians like Appian and Plutarch looked back on their own era of politicized court reform as the beginning of the end for a dying republic. When Gaius Gracchus, a fiery young reformer, led a popular uprising to power in Rome after the death of his brother, one of his major policy initiatives was to take the power of judging court cases away from the senators, who were the highest political class, and give it to the equites (the “knights”) who were intermediate between the senate and the people.
This looked like a populist reform — the senate had admittedly become corrupt, and Gracchus’ proposal had the appearance of something that would increase transparency and accountability. In point of fact, though, Appian writes that the knights “became addicted to bribe-taking, and when they too had tasted these enormous gains, they indulged in them even more basely and immoderately than the senators had done.”
The reason for this is obvious: at moments of deep-seated mistrust and political instability, making drastic changes to the structure of power turns fellow citizens into competitors for political favor. Gracchus, like Biden, claimed he could put the courts into the hands of the people. But, like Biden, he was really proposing to take control of the law himself.
A century of bloodshed and civil war followed Gracchus’s irresponsible measures. We are fooling ourselves if we think we are better suited to pack the courts now than Rome was then. Plenty of bipartisan analysts think a saner proposal would be just the opposite of court-packing: a constitutional amendment to keep the Court at nine members. That is the kind of thing that amendments are intended for: reflecting the lessons learned from abuses of the American system over time.
We are lucky that the wisdom of our founders made it impossible for a president to meddle in the structure of the courts without the consent of Congress. We are even luckier that the providence of God seems to have kept Congress out of complete Democrat control this election cycle. If Biden does go through with a court-packing plan, it will be up to the people’s representatives to stave off disaster and defend the Constitution against malformation. There is nothing partisan about this — the same principles would hold good if a Republican were proposing the same thing, and responsible Democrat congresspeople should be pressed to recognize that. It is a fight worth having and — by the grace of God — it can still be won.
Spencer Klavan is host of the Young Heretics podcast and associate editor of the Claremont Review of Books and The American Mind. He can be reached on Twitter @SpencerKlavan.