What is court packing, and why are Democrats suddenly so into the idea?

What is court packing, and why are Democrats suddenly so into the idea?September 29, 2020

Now that President Trump has officially announced Amy Coney Barrett as his pick for the Supreme Court seat vacated by the late Justice Ruth Bader Ginsburg, some Democrats are embracing a strategy that involves putting as many liberal justices on the court as possible. The concept, known as “court packing,” is not new, though it’s rarely been widely embraced as a means of making political gains because of its extreme nature.

If Barrett is confirmed and appointed before Election Day, it would solidify a 6-3 conservative majority on the bench and change the makeup of the high court for generations. So what is court packing and what would it actually achieve? Here’s everything you need to know.

What does it mean to pack the courts?

Court packing, put simply, is a way of gaining ideological power by adding justices to the bench. Because a seat on the Supreme Court is a lifetime appointment and justices can’t be removed, only impeached, the best way to for liberals to regain power on the high court without a vacancy is to simply add more justices to the bench and thus, “pack the court.” The ideological lean of the Supreme court is so important because the justices affirm or reject laws passed by Congress or executive orders implemented by the president, and can actually effectively legislate from the bench.

Trump has already appointed two conservative justices during his first term. Justice Neil Gorsuch replaced the late Justice Antonin Scalia, himself a staunch conservative, so Gorsuch’s appointment didn’t itself change the ideological makeup of the court (until you consider that Scalia’s seat should’ve been filled by President Barack Obama). But Justice Brett Kavanaugh replaced Justice Anthony Kennedy, who retired in 2018; Kennedy was a crucial swing vote who had sided with liberals on a host of social issues, and replacing him with Kavanaugh nudged the bench to the right.

Now, Trump has the chance to add his third conservative Supreme Court justice. This means that the court will weigh heavily toward conservative ideological beliefs, putting Democratic legislative efforts in jeopardy. We’ve seen how in its latest term, the 5-4 conservative split still ruled in favor of some key liberal priorities, including abortion access and protections for LGBTQ+ people and young immigrants. But a 6-3 split is a much taller order for liberals to overcome, and thus has some calling for Joe Biden, should he win the presidency, to “pack the court” by adding liberal justices beyond the traditional nine-person bench.

How does court packing actually work?

The Constitution doesn’t say anything about the number of Supreme Court justices, and indicates that more can be added through powers vested in Congress. Adding another seat to the bench is thus as simple as passing a law. That would be difficult now, given that Democrats control the House of Representatives and Republicans control the Senate, but the makeup of Capitol Hill could look very different after Nov. 3.

Court packing is actually how we got to the current composition of nine justices. In the U.S. government’s earliest days, Congress constructed a Supreme Court with just six justices. The expansion of lower court system motivated legislators to consider expanding the high court because at the time, Supreme Court justices worked double duty as circuit court judges. In 1807 Congress added another justice, and later added two more justices in 1837.

The Civil War gave way to an entirely new battle around how much power the judiciary — an unelected body — should have in determining the rights of those in the U.S. To push his agenda through, President Abraham Lincoln added another seat to the high court, bringing the number of justices to 10. After the Civil War’s end, Congress shrunk the number of justices to seven, only to once again amend the number three years later in 1869 after a congressional move to set the number of justices at nine.

In 1936, President Franklin Delano Roosevelt also tried a similar scheme to Lincoln’s, packing the courts to ensure legislative victory. However, the effort was widely criticized and never enacted.

Who’s in favor of packing the courts?

Liberal groups argue that there’s a legitimate argument for packing the courts to further a Democratic agenda: Donald Trump was elected without the support of a majority of voters, therefore the values of his nominees would also be out of line with a majority of Americans. There’s also the argument that by refusing to hold a hearing on Obama’s nominee to replace Scalia in 2016 under the guise of the impending election, the choice to ram through a nominee with less than 50 days before this year’s election is a level of hypocrisy that negates the norms that would have prevented court packing.

In a letter signed earlier this year, a number of left-leaning activists and political organizations argued that the current construction of the court is an “affront to democracy.” They wrote that “15 of the last 19 Supreme Court justices were nominated by Republicans, despite the fact that Republicans have lost the popular vote in six of the last seven presidential elections.” Additionally, they said, “four of the five conservatives currently on the court were appointed by Republicans who took office despite losing the popular vote,” referring to Trump and Bush.

The letter also claims that the most-recently appointed justices have not ruled on issues in accordance with the Constitution, but instead with the Republican party. “In all 80 civil cases implicating a Republican donor interest that was decided by 5-4 majority during John Roberts’s tenure as chief justice, Republican donor interests are undefeated — 80-0,” according to signatories like Sunrise Movement and Demand Progress.

The idea of packing the courts also gained traction during the presidential primary race, in which 11 candidates were “supportive” of adding justices to the bench — including California Sen. Kamala Harris, the Democratic vice presidential candidate. While only a few congressional Democrats have been vocal about outright support for court packing, Senate Minority Leader Chuck Schumer (D-N.Y.) said on a call that “nothing is off the table for next year” if Republicans push forward with Barrett’s confirmation process.

Who opposes court packing?

Some high-profile Democrats are less enthusiastic about the idea, including Biden. During the primary race, he opposed adding justices to the bench, saying to Iowa Starting Line, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Now that he’s the official nominee, though, and given the Republican response to Ginsburg’s passing, Biden is less vocal about his opposition to court-packing. But he’s certainly not all-in on the idea. Instead, he’s been working to appeal to those on the right for respect for the nomination process and the precedent they set in 2016 by refusing to confirm a justice in an election year.

It would figure that Republicans are equally displeased by the idea of Democrats packing the court. Ohio Rep. Jim Jordan recently introduced a resolution that would cap the number of justices at nine, in a clear attempt to block any future efforts by Democrats. The resolution says that increasing the number of justices would “undermine our democratic institutions and destroy the credibility of our nation’s highest court.”

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