Patently Political: Court Packing

September 2, 2022

Fast Facts:

In April of 2021, Democrats introduced a proposal to add four seats to the Supreme Court. Co-sponsors include Senator Markey and Representative Nadler.
After the Supreme Court recently overturned Roe v. Wade, organizations like Demand Justice increased calls to expand the Supreme Court.
In response to the ruling Senator Markey called for the Senate’s filibuster to be disposed of to advance attempts to expand the Supreme Court.
Other Senate Democrats, like Mark Kelly, have expressed disagreement over the Court’s expansion with their progressive colleagues.
Republicans continue to maintain their staunch opposition to expansion proposals.

The Republican Party, which was bent on overturning a Constitutional right to abortion, focused on the appointment of judges to the Federal judiciary for decades. Now, with their efforts paying off in the form of opinions like Dobbs v. Jackson Women's Health Organization, Democrats, mostly on the further left end, have increased chatter regarding adding justices to the Supreme Court to increase their influence. Referencing the push for expanding the Court, NPR highlighted a tweet, from Congresswoman Alexandria Ocasio-Cortez, arguing, “Democrats can either…expand the court, or do nothing as millions of people's bodies, rights and lives are sacrificed for far-right minority rule.” The messaging seems to be working, with an NPR/PBS NewsHour/Marist National Poll now finding only fifty-four percent of Americans reject the bold idea of adding justices to the Court.

While a move for Supreme Court expansion sees renewed interest today, it is not a new proposal. In fact, Democrats point to President Franklin Delano Roosevelt’s 1937 Judicial Procedures Reform Bill, which was aimed at adding six more justices; it is not as radical a move as Republicans make it out to be. Proponents of court packing may also point to the fact that the aforementioned poll also found confidence in the Supreme Court has fallen to 39%, in contrast with 60% in 2019.

Opponents also look to history as one reason not to make changes, specifically the number of justices having been nine since 1869. Republicans, like Ted Cruz, who strategized to influence the Court with this composition in mind, argue Democrats now seek “...to change the rules to stay in power.” Democrats, many feel, are indeed going back to the practices of FDR. They often point to the party’s motivation being dissatisfaction with rulings from the Supreme Court hindering their ability to pass their agenda.

Whether or not one is in favor of expanding the Supreme Court, it is difficult to argue one’s position comes from non-political motivations. This must be a key consideration; the Court is intended to be an institution above politics, with the late Justice Ruth Bader Ginsberg, a Clinton appointee, warning that creating an appearance of partisanship in the judiciary would involve, “One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to.” Maintaining the legitimacy of the Court was not a concern that stopped with her. Justice Stephen Breyer, another Clinton appointee, notes, “If the public sees judges as politicians in robes, its confidence in the courts—and in the rule of law itself—can only diminish….”

When all factors are considered, the politics of packing the Court may be heated, but the standpoint of those in the judiciary is not. The Supreme Court will see its autonomy and its legitimacy eroded if lawmakers do not defend the Federal Judiciary.