Court packing is when the President and Congress change the size of the supreme court to alter its ideological makeup.
What Is Court Packing?
The Supreme Court is the head of federal courts in the United States of America. It is the final appellate court and the ultimate arbiter in the interpretation of the US Constitution. Over the years, the number of supreme court justices has ranged from five to 10. Every expansion or contraction of this number has been a highly politicized process. Some argue the political nature of the court is unavoidable, given that supreme court justice nominees must be confirmed by highly partisan legislatures. It stands to reason that any changes to the court would also be political, moving beyond legal studies and theories.
Plainly stated, court packing is when government officials change the size of the supreme court in hopes of altering its ideological makeup. In the US, this means the executive branch and Congress working together to change the established number of US Supreme Court justices.
A Brief History of Court Packing
The first effort to change the size of the court occurred during the administration of Thomas Jefferson. When Jefferson was inaugurated in 1801, succeeding John Adams, the US Supreme Court consisted of five justices. Jefferson had increased the number to seven by 1807. There may have been some non-partisan justification for this. The Judiciary Act of 1787 stipulated that supreme court justices would also act as regional judges, which meant that a number of them had to “ride the circuit,” reducing their availability to fulfill their main duty.
Still, it should be noted Jefferson was a shrewd and ruthless politician. In fact, he started his first presidential term by leading the effort to impeach SCOTUS Justice Samuel Chase—a federalist rival. Some historians argue Jefferson was comfortable manipulating the court in order to weaken his political opponents and exert influence over the fledgling nation’s laws government.
President Andrew Jackson brought the next major change to the high court. The Judiciary Act of 1837 increased the number of judges on the supreme court from seven to nine, and it reorganized the federal circuit courts. The law came into effect immediately, which allowed Jackson to appoint justices at the very end of his second term. Observers of the time noted that all of Jackson’s second-term SCOTUS appointments came from slaveholding states. Many people became alarmed at the prospect of federal affairs falling into the hands of “slave-owning” interests, which of course foreshadowed the coming Civil War.
On that same front, President Abraham Lincoln added another justice to the court in 1863 to reduce the number of circuits representing slaveholding states. Three years later, in the Judicial Circuits Act of 1866, Congress reduced the number of justices to seven so as to deny President Andrew Johnson a nominee. Another congressional act in 1869 put the number back to nine, where it has remained ever since.
President Franklin Delano Roosevelt of New York was the last president to make a serious attempt at court packing. This came as a result of FDR’s frustration with the conservative justices on the court who kept striking down his New Deal legislation. President Franklin D. Roosevelt planned to appoint two new justices for every serving justice over the age of 70 who did not retire. FDR never put his plan into action, though some historians believe he had the votes in Congress to do so. Many of these same historians also believe the conservative majority unofficially compromised with Roosevelt by allowing some of his New Deal legislation through.
Court Packing: The Pros
Why some Democrats are talking about packing the court now: There has been a 5-4 majority on the Supreme Court for over 40 years. Following President Trump’s administration and his appointments to the court, that majority has expanded to 6-3 in favor of the conservatives. Democrats argue it was unconstitutional when then-US Senate Majority Leader Mitch McConnell refused to even hold judiciary committee hearings for Obama-nominee Merrick Garland. They allege Republicans essentially stole a supreme court seat with the installation of Neil Gorsuch, following Trump’s election. They believe that expanding the court will help balance the judiciary between liberal and conservative thinkers.
Why some Democrats prefer 13 supreme court justices instead of nine: Democrats claim the number 13 is grounded in American history. At one time the number of justices corresponded to the number of circuit courts. There are now 13 circuit courts, so there should be a matching number of justices.
The case for court packing as a way to promote democracy: Admittedly, the number of justices is rather technical and somewhat disconnected from typical politics. Democrats—especially progressives—see court packing as one of the best ways to promote or protect democracy. The replacement of Justice Ruth Bader Ginsburg with Amy Coney Barrett put the number of conservative jurists at six. Democrats contend this does not reflect the political leanings of the nation, citing the fact they have won the popular vote in eight of the last nine presidential elections.
Court Packing: The Cons
A once shunned idea is now reemerging: Republicans thought they had done enough to discredit the idea of court packing during the Roosevelt administration. Truthfully, the issue had largely faded from discussion and consideration until just recently. With the idea making an ideological comeback, some conservatives are taking the issue seriously.
Judicial independence is more important than the majority’s temporary political advantage: An independent judiciary is a pillar of conservative thought. Republicans contend that judges must make rulings based on constitutional text rather than political ideology. Anything other than a legal interpretation of the Constitution itself is said to be the work of an “activist judge,” who legislates from the bench. Conservatives argue that adding justices to the supreme court due to temporary political advantages would ultimately weaken its independence.
Why nine is the right number of justices: Republicans argue that nine is the right number of justices mostly because of the established precedent. Adding more justices could set off a kind of judiciary arms race, in which new justices would be added each time the White House changed party hands.
Flag This: What Both Sides Think
Polling suggests that court packing remains unpopular. Overall, just 26% of Americans favor adding justices to the supreme court: 43% of Democrats support the move, as well as 17% of independents, and 9% of Republicans.
Recent actions taken by Democrats: Despite the polls, progressive Democrats in the House of Representatives have advanced legislation to expand the court. To date, the bills have gone nowhere and received little support from the White House. However, during the presidential election of 2020 Joe Biden promised to form a committee that would look at ways of reforming the judiciary. He then signed an executive order establishing this committee after taking office.
Recent actions taken by Republicans: In 2019, senators Mitt Romney and Mike Lee introduced a bill that would permanently fix the number of supreme court justices at 9. It is also widely known that Chief Justice John Roberts, who was appointed by Republican former President George W. Bush, is sensitive about the public perception of the court and has tried to separate it from politics.