The Law and Lore Behind ‘Packing’ the U.S. Supreme Court
The likelihood of a solid conservative majority on the U.S. Supreme Court for years to come has some Democrats contemplating a legislative moonshot. They’re pressuring their candidate in the Nov. 3 presidential election, former Vice President Joe Biden, to endorse the idea of expanding, or “packing,” the court beyond its current nine seats. Others in this so-called progressive wing of the Democratic Party would replace the life tenure of Supreme Court justices with fixed terms. In the words of Chuck Schumer of New York, leader of Senate Democrats, “nothing is off the table.”
1. What would it take to expand the court?
Because the Constitution is silent on the court’s size, expanding it could be done through the regular legislative process by which all laws are made. Practically speaking, enacting such a historic and controversial change to U.S. government would require Democrats to hold their House majority in the Nov. 3 election and win both the White House and a majority in the Senate. Even then, barring a historic and unforeseen Election Night romp that gives them control of 60 of the 100 Senate seats, Democrats would also need to do away with the filibuster, the unwritten Senate practice that normally means a 60-vote supermajority is required to pass major legislation.
2. Has the court always had nine seats?
No. The Judiciary Act of 1789 created a six-member court. President John Adams tried to shrink the court to five before leaving office in 1801. His successor, Thomas Jefferson, was able to reverse the law before it went into effect. For a time, the number of justices rose with the number of circuit courts, rising to a high of 10 in 1863. Congress reduced the number to seven in 1866, to deprive President Andrew Johnson of appointments, then raised the number in 1869 to nine, where it’s held ever since.
3. Would Democrats really expand the court?
Biden has said he’s “not a fan of court packing,” and without him in the White House and on board, the idea won’t go anywhere. (He has suggested he might elaborate on his thoughts on the issue before the Nov. 3 election.) History suggests there’s good reason for Biden to be cautious. In 1937, President Franklin D. Roosevelt, a Democrat, proposed expanding the size of the court due to resistance to his policies by a conservative majority. He faced opposition within his own party and additional seats weren’t added, but his efforts were credited with persuading one of the conservative justices to break ranks and vote in favor of a state minimum-wage law. That has gone down in history as the “switch in time that saved nine” — meaning, the nine-member size of the court.
4. Why now?
The expected confirmation of Amy Coney Barrett, giving the court a solid 6-3 conservative majority, will culminate a multiyear fight that has left Democrats irate. It began in 2016, when the death of Justice Antonin Scalia, a conservative, gave President Barack Obama the opportunity to move the court to the left. But Senate Majority Leader Mitch McConnell, a Republican, refused to consider Obama’s nomination of Merrick Garland, on the grounds that a vacancy shouldn’t be filled during a presidential election year. (McConnell’s refusal was as consequential as it was controversial, as Trump, rather than Obama, wound up filling the vacancy, with Neil Gorsuch.) Fast forward to 2020. A seat opened up just six weeks before Election Day with the death of Ruth Bader Ginsburg, one of the court’s leading liberal voices. This time, Republicans say it’s crucial to fill the seat by confirming Barrett before the election. The episode has added to complaints about politicization of the court.
5. What other complaints are there?
Fights over Supreme Court vacancies, which happen rarely, have become among the ugliest spectacles of a highly partisan era, and it’s become harder and harder to say with a straight face that the high court operates outside the political arena. A group called Fix the Court says justices are holding their seats “past their intellectual primes” and waiting to retire until a like-minded president is in office, and that the party in charge then “scrambles to find the youngest, often most ideological nominee (who, at the same time, knows the right things to say at a confirmation hearing) in order to control the seat for decades to come.” Proponents of adding justices say it would turn down the temperature of these combative proceedings by lowering the stakes of each vacancy. Toward the same goal, others advocate replacing lifetime tenure with fixed terms for justices.
6. What would it take to end lifetime tenure?
Fix the Court, a nonpartisan group that advocates making federal courts “more open and more accountable,” advocates staggered terms and 18-year limits for future justices, a system under which one seat would come open every two years. (Representative Ro Khanna, a California Democrat, has codified the idea in a House bill.) But this approach, if tried, would undoubtedly face legal challenges. The Constitution’s command that justices “hold their offices during Good Behaviour” has been interpreted to mean justices, like other federal judges, enjoy life tenure. Fix the Court’s plan would try to get around this problem by moving justices to so-called senior status after 18 years, meaning they could continue sitting on lower federal courts or fill in if there’s an unexpected vacancy. But many legal scholars, including some that support structural changes, say term limits would require passing an amendment to the Constitution, a difficult and rare feat.
The Reference Shelf
- The National Constitution Center on why the Supreme Court has nine justices.
- A history of packing (and unpacking) the Supreme Court by the Maryland State Bar Association.
- The website of Fix the Court.
- Bloomberg Opinion columnist Noah Feldman on why not even FDR could pack the court.
- The Federal Judiciary Center summarizes the constitutional origins of the judicial branch.
- The Supreme Court Historical Society has a multimedia presentation on FDR’s court-packing controversy.
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