In the aftermath of the death of Justice Ruth Bader Ginsburg, a Washington political power struggle erupted as Republicans seized the opportunity to grasp a conservative-leaning Supreme Court with President Donald Trump’s nominee — a possibility that’s ignited Democrats to revive the progressive idea of expanding the nation’s high court to more than nine seats.
With Democrats infuriated by the likelihood of a 6-3 rightward majority in the Supreme Court in the upcoming weeks, the party has considered court-packing if Democratic nominee Joe Biden wins the White House and Democrats regain the majority in the Senate. “We should leave all options on the table, including the number of justices that are on the Supreme Court,” progressive Rep. Alexandria Ocasio-Cortez (D-N.Y.) said last weekend.
What is Court Packing?
The move — a radical idea that broadens the Supreme Court by adding more judges than what exists now — would tilt the highest court to be more left-leaning if Biden is elected and Democrats rally enough federal level support to pass the law. The constitution doesn’t state how many justices must sit over the court, as Congress has manipulated the scope of it several times starting out with six justices and reaching as high as 10.
There have been nine justices on the Supreme Court for well over a century, but former presidents have attempted to swell the court’s bench, including President Franklin D. Roosevelt. In 1937, Roosevelt pushed legislation that would have extended the court from nine to 15 justices due to his growing aggravation of the justices rejecting his New Deal legislation.
Roosevelt emphasized putting age limitations on the court — by adding a justice for each one that served passed 70 — because of the justices’ lifetime appointments, but the move was viewed “as a political ploy to change the court” and to compel the justices to back New Deal laws. Congress severely opposed Roosevelt’s “court-packing plan” and in the end, the Supreme Court’s approach to the New Deal agenda shifted, which became known as “the switch in time that saved nine.”
Why Democrats Support It
The overall argument behind packing the court is to morph the political composition of the Supreme Court, as Democrats may believe that the ideology represented within the highest court does not accurately represent the nation’s public opinion. “Since justices effectively can’t be fired, except by impeachment, the idea of court-packing is to dilute their vote,” Georgetown University law professor Josh Chafetz told The Washington Post.
After two of Trump’s Supreme Court nominations — Neil Gorsuch and Brett Kavanaugh — Democrats have yearned to reshape into the court. Ginsburg’s death revved up these political goals, as comments from congressmen have hinted in favor of packing the court with more liberal justices if there is a double Democratic win in November.
“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Minority Leader Sen. Chuck Schumer (D-N.Y.) told his caucus on a call after Ginsburg’s death.
The idea of court packing was a topic of debate during the Democratic presidential primaries, whereas many as 11 candidates, according to The Post, said they were at least open to it. “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Elizabeth Warren (D-Mass.) said. “It’s a conversation that’s worth having.” “We need to reform the Supreme Court in a way that will strengthen its independence and restore the American people’s trust in it as a check to the presidency and the Congress,” Pete Buttigieg said.
Does This Have a Chance to Pass?
Biden has been adamant in denying the court-packing request, as approving it would hurt Democrats in the future once Republicans eventually regain control in the upper chamber or in the White House. As a lawmaker who's been on Capitol Hill for more than three decades, Biden is known as someone who hopes to preserve a traditional political agenda.
In recent days, however, the former vice-president didn’t directly answer when asked if he’d support the progressive idea of expanding the court. “Let’s say I answer that question. Then the whole debate’s going to be about what Biden said or didn’t say, Biden said he would or wouldn’t,” Biden said at a local interview in Wisconsin after Ginsburg passed. “The discussion should be about why” the president “is moving in a direction that’s totally inconsistent with what the founders wanted.”
Expanding the court is seen as a progressive move, so doing so would likely repel moderate voters from Biden’s race to the White House in November.
Even though the push is backed by many Democrats, it would be difficult for the party to rally a complete majority to side with the court-packing plan. Similar to moderate voters, swing Democrats would also be resistant to support such a radical agenda that would virtually change the fundamental ideological scope on the Hill. If Democrats gain control of the White House and Senate in November, as well as maintain the majority in the House, seizing a liberal-leaning Supreme Court by adding more justices would change the nine-justice tradition that’s been practiced for nearly 150 years.
Considering the state of the country — battling the deadly coronavirus pandemic and economic collapse — court-packing also wouldn’t be at the top of Biden’s agenda.
It’s unlikely that America will have a Roosevelt repeat, where the president is so frustrated that he tries to expand the court to pass his legislation, but if elected in November, Biden could offer a numner of surprises.
Rachel Bucchino is a reporter at the National Interest. Her work has appeared in The Washington Post, U.S. News & World Report and The Hill.
Image: Rep. Alexandria Ocasio-Cortez, D-N.Y., questions Postmaster General Louis DeJoy during the House Oversight and Reform Committee hearing titled "Protecting the Timely Delivery of Mail, Medicine, and Mail-in Ballots," in Rayburn House Office Building on Monday, August 24, 2020. Tom Williams/Pool via REUTERS.