To Pack or Not to Pack?

The vice presidential debate of 2020 was a sensational event, even ignoring the fly that landed and remained for several minutes on Vice President Mike Pence’s crop of snow-white hair.[1] Moderator Susan Page challenged Pence and California Senator Kamala Harris on a number of pertinent issues, including coronavirus (for which President Trump had recently tested positive), the economy, race, and foreign and domestic policy.[2] A particularly contentious topic rested in Supreme Court nominee Amy Coney Barrett, whose nomination in late September[3] sparked controversy due to its proximity to Election Day.

Both candidates had their piece to say about Barrett: Harris claimed that the American people should elect the president who would nominate the candidate to fill Justice Ruth Bader Ginsburg’s vacancy. Pence, on the other hand, accused Harris of court packing. “Are you and Joe Biden, if you somehow win this election, going to pack the Supreme Court to get your way?” Pence asked.[4] Harris — and, by proxy, presidential nominee Joe Biden — evaded the question. Harris should have answered in the affirmative. Beyond the immediate gains that court packing would offer the Democratic Party, the concept poses the potential to create a better, less fragile Supreme Court for the future of the United States.

Court packing originated at the beginning of the twentieth century, when President Franklin Delano Roosevelt proposed the Judicial Procedures Reform Bill of 1937 to add up to six justices to the Supreme Court: one for each sitting justice over 70 years old. Roosevelt, elected to his second term, struggled to negotiate with a conservative court that voted against most cases involving his liberal New Deal policies. He sought, therefore, to “pack” the court with leftist votes more favorable to his propositions. The plan ultimately failed, foiled by popular opinion, Roosevelt’s own dissenting party members, and the Chief Justice at the time, Charles Evans Hughes.[5] Since Roosevelt’s first failed attempt, court packing has remained relatively confined to the bounds of history — at least until recently. 

 In March of 2016, President Obama nominated Judge Merrick Garland for the Supreme Court after the passing of former Justice Antonin Scalia. Senate Republicans refused to vote, citing primarily that the nomination was too close to Election Day in November. President Trump later elected Justice Neil Gorsuch to fill the vacancy at the beginning of his term.[6]

 The Supreme Court, which currently leans conservative, poses issues for the Democratic Party. Democrats worry about court decisions regarding gerrymandering and voting rights, which could prevent Democratic legislators from winning elections, in addition to associated ideological issues. Democratic lawmakers therefore turn increasingly to the concept of packing the court — and the addition of more justices with liberal voices.[7]

The Constitution itself is silent on the matter of court packing—it never specifies a certain number of justices. After the Judiciary Act of 1789, there were six justices on the court, and the number gradually increased and fluctuated throughout the nineteenth century, up to ten in 1863 and a final reduction to nine in 1869, where it has since remained.[8]

The current problems with the Supreme Court are inarguable. The deaths of Supreme Court justices consistently spark outrage and controversy, and the supposed bipartisan climate of the court has all but vanished. Justice Ruth Bader Ginsburg’s death closely follows Anthony Kennedy’s retirement at 84 in 2018 and Scalia’s death.[9] Almost directly after Ginsburg’s death, House Democrats announced their intent to propose legislation that would limit court terms to eighteen years, seeking to curb the difficulties associated with aging justices.[10]

 In an interview in August, Ginsburg said that she did not support packing the court. “Nine seems to be a good number. It’s been that way for a long time,” she said.[11] She also opposed the imposition of term limits, claiming that they were unrealistic given that the Constitution does specify limits for judges (so long as they serve “in good Behaviour”).[12]

What Ginsburg and others seem to be missing, however, is that packing the courts is fundamentally a good thing. Many worry that packing the court will result in a loss of impartiality, and temporarily, this is true. If a liberal president were to pack the court, they would almost certainly appoint liberal justices, swaying the court in favor of the Democratic Party.

The court’s bipartisan status, however, as previously stated, is questionable at best. There is an almost universally accepted spectrum of justices’ ideological alignment, placing Justice Sonia Sotomayor at the left edge and Justice Clarence Thomas at the right, with Chief Justice John Roberts closest to the middle.[13]

The United States legislators and general public fail to look beyond the immediate future. Far more importantly than ephemerally skewing the Supreme Court in one direction or another, packing the court would diminish the effect of replacing one judge. The last few justices nominated to the court, from Garland to Gorsuch to Kavanaugh to Barrett, have unfailingly and viciously picked apart the country. Justice nominations have been enormous issues in the past two elections. Democrats and Republicans have faced off over the Senate Judiciary Committee aggressively and brutally.  

Joe Biden has not yet announced his intent to pack (or not pack) the court, but he should. Beyond the first, fleeting addition of power to the Democratic Party, court packing is in the best interest of the United States’ collective future. 

References

[1] Colby Itkowitz, Anne Gearan. “Vice Presidential Debate: Highlights and Fact-Checks.” The Washington Post. WP Company, October 8, 2020. https://www.washingtonpost.com/elections/2020/10/07/vice-presidential-debate-live-updates/.

[2] Ibid

[3] “President Donald J. Trump Announces Intent to Nominate Judge Amy Coney Barrett to the Supreme Court of the United States.” The White House. The United States Government. Accessed October 13, 2020. https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states/.

[4]“President Donald J. Trump Announces Intent to Nominate Judge Amy Coney Barrett to the Supreme Court of the United States.” The White House. The United States Government. Accessed October 13, 2020. https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states/.

[5]“How FDR Lost His Brief War on the Supreme Court.” National Constitution Center – constitutioncenter.org. Accessed October 13, 2020. https://constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2.

[6] Scherer, Michael. “'Court Packing' Ideas Get Attention from Democrats.” The Washington Post. WP Company, March 28, 2019. https://www.washingtonpost.com/politics/court-packing-ideas-get-attention-from-democrats/2019/03/10/d05e549e-41c0-11e9-a0d3-1210e58a94cf_story.html.

[7] Ibid

[8]Nix, Elizabeth. “7 Things You Might Not Know About the U.S. Supreme Court.” History.com. A&E Television Networks, October 8, 2013. https://www.history.com/news/7-things-you-might-not-know-about-the-u-s-supreme-court.

[9] Nix, Elizabeth. “7 Things You Might Not Know About the U.S. Supreme Court.” History.com. A&E Television Networks, October 8, 2013. https://www.history.com/news/7-things-you-might-not-know-about-the-u-s-supreme-court. 

[10] Chung, Andrew. “Democrats Prepare Bill Limiting U.S. Supreme Court Justice Terms to 18 Years.” Reuters. Thomson Reuters, September 24, 2020. https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3.

[11] Totenberg, Nina. “Justice Ginsburg: 'I Am Very Much Alive'.” NPR. NPR, July 24, 2019. https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.

[12]“Debate Transcripts.” Rev. Accessed October 13, 2020. https://www.rev.com/blog/transcript-category/debate-transcripts. 

[13] Chung, Andrew. “Democrats Prepare Bill Limiting U.S. Supreme Court Justice Terms to 18 Years.” Reuters. Thomson Reuters, September 24, 2020. https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3.