Packing the Court or Taking it Back?

Though now is not the first time the structure of the Supreme Court has been challenged, it is the first time in over 150 years that the executive and legislative branches have launched simultaneous court reform initiatives. The Supreme Court has had nine members since 1869, with the only hiccup in contemporary memory being the 1930s court packing threat which resulted in the “switch in time that saved the nine.” In 1937, President Franklin Delano Roosevelt (“FDR”) vocally challenged the Supreme Court’s conservative interpretation of the Constitution, which it relied upon to strike down much of his popular New Deal legislation. After his re-election in 1936, FDR assumed a national mandate to enact his progressive policies and sought to work around the court to implement them. 

The “switch” refers to West Coast Hotel v. Parrish (1937), the case the Supreme Court considered when FDR announced his proposal to expand the court. In that case, which was decided after FDR’s court-packing bill was introduced in Congress, the court upheld a Washington State minimum wage law. However, then-Chief Justice Charles Evan Hughes has stated that the court’s decision was made long before it was announced, and that it was not at all influenced by FDR’s threats. Contemporary scholars are divided on to what degree the decision and pending congressional bill are connected, if at all, but many Americans understand the switch to be a direct result of FDR’s threats to pack the court. Regardless, that was the last time the structure of the Supreme Court was so publicly questioned.

Many Democrats trace the origins of this particular iteration of the Supreme Court debate to then-Senate Majority Leader Mitch McConnell’s blocking of President Barack Obama’s 2016 Supreme Court nominee, Judge Merrick Garland, who was to replace the late Justice Antonin Scalia. At the time, McConnell declared that for the Republican-controlled Senate to consider a Supreme Court nominee appointed by the President of the opposite party in an election year would violate long-standing institutional precedent; therefore, he insisted that the appointment of a new justice be left to the next president. 

However, when Justice Ruth Bader Ginsburg passed away in 2020, just weeks before the presidential election, McConnell led the charge to push President Trump’s conservative nominee, Judge Amy Coney Barrett, through the confirmation process. McConnell defends his ostensibly inconsistent (some may even say hypocritical) behavior by noting that in 2020, unlike in 2016, Republicans controlled both the Senate and the White House. 

Barrett was the third of Trump’s Supreme Court nominees, and her confirmation solidified the Court’s conservative majority. In light of this development, progressives hope that court expansion will allow them to “take back the court” from conservative jurisprudes. 

However, some prominent Democrats have come out against the proposal, including Supreme Court Justice Stephen Breyer, who warned that expanding the court for “political reasons” could harm the public’s trust in the judicial body as a whole. Speaker of the House Nancy Pelosi has expressed her support for the commission but indicated that she did not intend to introduce a court expansion bill to the House floor. There are even whispers that President Biden himself is against Supreme Court reform, as he previously has said that he is against “court packing.” Some analysts argue that Mr. Biden only created the commission to appease progressives who feel slighted by Trump’s appointments and the Court’s recent rightward shift. Much to the chagrin of those seeking concrete change, however, the commission is not expected to issue recommendations, but will simply write a report about the potential consequences of expanding the court, creating term limits, refining the case selection process, and making other changes.

Unsurprisingly, Mitch McConnell has been an outspoken critic of the commission and the proposed legislation, calling the movement an attempt to “politicize the Court, intimidate its members, and subvert its independence.” Other members of the Republican Party have praised Mr. Biden for crafting a balanced commission. While the group does lean to the political left, there are moderates from both parties included. The commission consists largely of law professors but will hold public hearings and consult experts during its 180-day investigation, which significantly increases the number of opinions that will be represented in its final report. 

Given that President Biden is, shall we say, less than enthusiastic about reforming the Supreme Court, coupled with Speaker Pelosi’s hesitancy to introduce the bill to the House floor , many analysts expect little to no concrete change to result from this venture. The boldest predictions forecast the release of a report favoring term limits, as legal scholars have debated the merits of imposing such limits on Supreme Court justices in recent years, while others predict an FDR-esque ideological “switch in time” from the Courts’ ideologically-center members. For the most part, though, Mr. Biden’s commission appears to be an attempt to virtue signal to his progressive supporters without committing to any concrete court reform whatsoever.