Packing the Supreme Court: Explaining Court Reformations

Shannon Clark '23, Contributing Writer

The Current Situation
With Supreme Court Justice Ruth Bader Ginsburg passing away on September 18, many questions have arisen about the future of the Supreme Court. Rewind back to 2016 when Justice Antonin Scalia passed away in February. Because it was an election year, Senate majority leader Mitch McConnell would not allow President Barack Obama to appoint a new justice to take Scalia’s place. As a result, once he was elected President Trump was able to appoint Niel Gorsuch to the seat. Multiple senators including Senator McConnell and Senator Lindsay Graham are recorded saying if it is an election year, the seat should wait to be filled by the elected president. However, Senator McConnell seems to have changed his mind as just after Justice Ginsburg’s passing he said, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Despite Senator McConnell contradicting himself, he does have the power to move forward with the confirmation process. Fifty-one senators’ votes are needed to confirm a Supreme Court nomination, and it is not clear if that many senators will vote to appoint Trump’s nomination.

Let’s just pretend there are 51 votes in favor of Trump’s appointee, and the nominee is appointed. That means the Supreme Court is split 6-3 Republicans and Democrats respectively. Three of those nine justices were appointed by Trump, an occurrence that has only happened 18 times* in the history of the United States. And if Trump is reelected, there is a prospect he may be able to appoint a fourth justice, meaning his appointments alone would make up nearly half of the court. Thus far, Trump’s appointees have been rather young, so their seats will likely be occupied for the foreseeable future. It goes without saying that Democrats would not want the court to be so heavily swayed to the right, especially because of the landmark decisions that are constantly being reevaluated such as abortion, immigration, voter suppression, and many more issues. So what can, and potentially will, the Democrats do?

First of all, the Democrats will try to prevent any confirmation from being made under Trump. They will do this by recruiting Republicans to vote against appointing the justice. Democrats would need to hold onto all 45 of the votes in their party, the two Independents’ votes, and obtain four Republican votes to prevent the simple majority. Regardless of how the confirmation of Trump’s nomination plays out, Democrats will do their best to elect Joe Biden, the Democratic nominee for president, to the office. Finally, if Trump is allowed the nomination, Democrats might recommend Biden attempt to pack the court.

History of Packing the Court
The Supreme Court of the United States is arguably the most complex branch of our government. The Supreme Court was technically established by the Judiciary Act of 1789, where the number of justices was set at six: one Chief Justice and five Associate Justices. However, the Constitution states that Congress is responsible for determining the number of justices. The least amount of justices that were ever on the court at one time was five, and the most was ten. 80 years after the original Judiciary Act, the Judiciary Act of 1889 was passed, resetting the number of justices at nine, but Congress still holds the power to change this number at any time.

According to the Constitution, if Congress passes an act requesting a change of the number of Supreme Court justices and the president signs it, the number can be changed. President Franklin Deleno Roosevelt (FDR) attempted to change the number of justices in 1937, but it failed to succeed. FDR wanted to pack the court, meaning he wanted to add more justices to the court. Since he would’ve chosen the new justices, this would’ve helped him in his battle to pass legislation to help rebuild the American economy after the Great Depression. Unfortunately, many people were against the idea, including the Chief Justice at the time Charles Evans Hughes, so FDR did not accumulate enough votes and was not able to pack the court.

Packing the Court in 2021
No other president has used this strategy in the past, but there is a possibility that Biden might if he is elected. Inevitably it is Biden’s decision, and according to an article by Politico published in mid June 2020, Biden has previously stated he is against packing the courts. He claimed, “‘I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.’”

Plus, Democrats would need to take back the Senate and keep the House of Representatives in order for this plan to work. This evidence leads us to believe the Democrats wouldn’t even consider packing the courts. However, the loss of Justice Ginsburg’s seat is an unexpected and undeniable factor. And additionally, citizens, especially Democrats, across the nation are in a period of activism, so if Biden doesn’t do everything in his power to protect the Liberal decisions of the court from being demolished there will be extreme backlash from the public.

Other Potential Court Reformations
Essentially there are two paths to reforming the Judicial Branch.

The first way is changing who is on the court: how many people, how they are chosen, adding term limits, etc. Packing the court would be an example of this type of reform. Another alternative would be to implement term limits on the Supreme Court justice’s terms instead of having their appointment last for life. In the past there have been philosophical debates regarding the constitutionality of this route. Some experts argue it would be against the wishes of our Founders’. If term limits were to be implemented, it would require a constitutional amendment, which is even more difficult than packing the courts. An amendment would require approval from ⅔ of the House of Representatives, approval of ⅔ of the Senate, and ratification of ¾ of the states (38 states). Though term limits would balance out the number of appointments each president would have (likely two per president). Another idea is allowing each political party to choose five justices, and once each justice is ready to retire, they would choose their successor.

The second option would be changing how the branch functions: forbidding rulings on certain issues, giving Congress permission to step in if the court makes a mistake, or requiring a larger number than just a majority for a ruling. This path of reform appears as if it would be more permanent but could potentially also take away most of the Judicial Branch’s power, nearly eliminating the concept of separation of powers under three branches of government. It also might be risky to leave interpreting the Constitution up to the two branches that are constantly finding loopholes to pass legislation. It also wouldn’t leave anyone to check the Executive Branch nor the Legislative Branch’s power which is again, dangerous. One method in this reform path is requiring at least six or seven justices to agree to eliminate partisan bias. It has been proposed that if a simple majority cannot be reached it would be left up to Congress.

As of now, there is no telling what might happen. It is expected that Senator McConnell and President Trump will try to push the nominee through the confirmation process as quickly as possible, but it is unknown who the nominee will even be. These next steps for this Supreme Court seat and for the future of the Supreme Court will be marked in history as a monumental, defining period for our country.

*Under the following Presidents:
Washington, 11 appointments
Adams, 3 appointments
Jefferson, 3 appointments
Jackson, 6 appointments
Lincoln, 5 appointments
Grant, 4 appointments
Harrison, 4, appointments
Cleveland, 4 appointments
T. Roosevelt, 3 appointments
Taft, 6 appointments
Wilson, 3 appointments
Harding, 4 appointments
Hoover, 3 appointments
F. Roosevelt, 9 appointments
Truman, 4 appointments
Eisenhower, 5 appointments
Nixon, 4 appointments
Reagan, 4 appointments

The Supreme Court
Constitution Center
Politico June 2020
Politico August 2020
The Atlantic