The confirmation hearings for Judge Amy Coney Barrett, President Trump’s nominee for the Supreme Court, continue Tuesday and promise to be contentious for a number of reasons: their nearness to a hotly contested presidential election; the backdrop of Senate Republicans refusing to consider President Obama’s nominee, Judge Merrick Garland, in 2016; a national rising tide of tension related to racial justice, religious liberty, debates over abortion, and LGBTQ rights.
In recent weeks, another controversial topic has joined the fray. Politicians and observers have floated court packing — the expansion of the Supreme Court to include more justices — as a possible next move in the political battles surrounding the country’s high court.
Those advocating for expanding the court say doing so could alleviate the impact of what critics are calling unfair recent appointments. Detractors say that packing the court would undermine the institution’s traditions and possibly even its legitimacy.
The history of court packing
- Though the Constitution affords Congress the power to change the number of Supreme Court seats, Congress hasn’t acted on that power in a long while. The number of justices has changed six times, but not since 1869.
- The most recent presidential effort to change the Supreme Court’s size came in 1937, from Franklin D. Roosevelt’s Judicial Procedures Reform Bill. Roosevelt wanted six new justices—one for each sitting justice older than 70 — citing a need for “new blood in the courts.” The court had struck down certain of his New Deal laws. The bipartisan pushback to Roosevelt’s plan included his own vice president.
- In recent election seasons, the makeup of the Supreme Court — and the question of who should appoint a justice near an election — has become a central issue. In 2016, after the death of Justice Antonin Scalia, Senate Republicans refused to consider Garland, President Obama’s nominee, for more than eight months. “The American people should have a voice in the selection of their next Supreme Court justice,” Republican majority leader Mitch McConnell said. “Therefore, this vacancy should not be filled until we have a new president.” President Obama responded, “I simply ask Republicans in the Senate to give him a fair hearing, and then an up-or-down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.” The seat remained open until President Trump filled it by appointing Neil Gorsuch, an outcome recently defended by Republican leaders as justified by the party’s control of the Senate at that time.
- When Justice Ruth Bader Ginsburg died last month, less than two months before an election, Democrats moved quickly to remind Republicans of their earlier stances, but prominent Republicans asserted differences. Last month, Utah Sen. Mike Lee, a member of the Senate judiciary committee, said the key distinction is that Republicans now control both the White House and Senate. “Democrats would have done it exactly the same way had the shoe been on the other foot,” Lee said.
- Some Democrats have become more vocal about the possibility of court packing in response. “We should leave all options on the table, including the number of justices that are on the Supreme Court,” progressive New York Rep. Alexandria Ocasio-Cortez said last month. “Nothing is off the table,” said Democratic leader Chuck Schumer.
- Republicans, though, broadly oppose the practice and are joined by many Democrats. In an October debate, Joe Biden suggested that the tactic would lead to an ever-escalating mess. “We add three justices; next time around, we lose control, they add three justices,” he said. “We begin to lose any credibility the court has at all.”
- In pragmatic terms, passing legislation to change the makeup of the court would require not just Biden’s willingness but majority approval from the House of Representatives and Senate.
Where it stands now
Court packing remains an unpopular potential tactic among the American public, by roughly the same margin the public favors waiting to appoint Ginsburg’s replacement, according to an ABC News/Washington Post poll. Fifty-four percent of respondents oppose a Democratic president expanding the court. In last week’s vice presidential debate, Mike Pence challenged Sen. Kamala Harris on the point. “This is a classic case of, if you can’t win by the rules, you’re going to change the rules,” Pence said.
Despite his historical opposition to court packing, Biden has recently sidestepped the question. “(Voters will) know my opinion on court-packing when the election is over,” he recently told reporters. “He’s refusing to answer about whether he’s going to pack the Supreme Court, upending a 150 years of our judicial standards,” Republican National Committee Chairwoman Ronna McDaniel said.
Many hurdles remain between the present moment and the possibility of Democrats packing the Supreme Court. Biden would have to win November’s election, and Democrats would have to win the majority in the Senate, before even attempting the still-unpopular maneuver could be considered.
The conversation itself, though, sheds light on a pattern common to the Trump presidency: onetime political norms becoming contested battlegrounds. Conflicts over individual justices have grown into conflicts over the institution itself. Ginsburg herself advocated for the number of justices remaining as it is. “Nine seems to be a good number,” she said in 2019. “It’s been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”