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Court Packing: Breaking Checks and Balances?

With President Trump's appointment of two Supreme Court Justices in one term, the balance of the Supreme Court has tilted noticeably in Republicans' favor. In response to this, some Democrats have revived a concept dating back to the Civil War: court packing, the act of changing the number of Justices on the Supreme Court in order to receive favorable rulings on legislation. If a Democratic President wins in 2020, and Democrats hold a majority in the Senate, these Democrats want to expand the number of Justices in the Supreme Court to defend existing rulings, and create new rulings in Democrats’ favor. Despite the reasons these Democrats have for coming out in favor of court packing, any attempt to pass an Act of Congress to change the Supreme Court size is almost certainly doomed to failure due to its radicalism and fear of voter reprisal.

Court packing as a concept has been around for a long time. The most famous successful case of court packing happened throughout Abraham Lincoln's Presidency. At the time, Supreme Court Justices were also federal circuit judges, so Congress could justify changing the makeup of the Supreme Court by changing the circuits (Huebner). As such, the Radical Republicans reduced the number of circuits in slave-holding states from five to two, dispersing the other three throughout the rest of the country, and added an additional circuit in California, a free state. This culminated in the Prize Cases, where the Supreme Court, in a 5-4 decision, gave the best possible ruling to the Republicans in regards to the blockade of Confederate ports: the Confederacy were belligerents, but not an independent nation, and Lincoln had the full executive authority to carry out the war without Congress having declared it first. This meant that Lincoln and the Republicans had committed no unconstitutional actions in the Civil War before the ruling (“Prize Cases”). Clearly, the Supreme Court’s unquestioning obedience would be the holy grail of a unified government, but, despite the best efforts of Franklin Delano Roosevelt, court packing would never successfully happen again.

1936 was a landslide for the Democratic Party, maintaining and expanding supermajorities in both houses, and winning the presidency in one of the most lopsided elections in American history. However, the Democratic Party’s New Deal was still being neutered in the conservative Supreme Court. Eventually, this culminated in the Judicial Procedures Reform Bill of 1937, which would grant the President the power to appoint additional Justices to the Supreme Court, up to six, for every Justice over 70 years old (Waxman). Naturally, both parties knew this was a thinly veiled attempt to pack the court, and even Roosevelt’s Vice President was against the bill. Ultimately, the bill never reached the Senate floor, as the bill was constantly held in committee by committee chair Henry Ashurst. Additionally, Joseph Robinson, the Senate Majority Leader and chief supporter of the bill, passed away suddenly during talks to bring the bill to the floor. Ultimately, the point was moot, as the bill’s proposal convinced swing Justice Owen Roberts to support the New Deal in order to continue judicial independence (Waxman). Thus, the three branches of government remained intact, with talks of court packing relegated to the political fringe until recent years.

After two very contentious Senate confirmations, President Trump appointed two Justices to the Supreme Court: Neil Gorsuch and Brett Kavanaugh. After the shift, it appears that the swing Justice is now Kavanaugh, further right than the previous swing Justice Anthony Kennedy, and more consistent in voting conservatively on major issues (“Swing”).
With this shift, Democrats are worried that this new collection of Justices will overturn previous rulings, such as Roe v. Wade. Thus, some Democrats wish to bring back the concept of court packing, so that a Democratic President and a Democratic Senate can work together to ensure a Democratic-aligned Supreme Court. This kind of legislation is extremely unlikely to pass, however. Radical Democrats have been largely cut off from major policy influence, because their policies can often backfire for members who support them, and they are electorally weaker than moderate candidates with moderate positions (Hall). The attempts at court packing failed for Congress in 1937, despite Democratic supermajorities in both Houses of Congress. Even the most hopeful of Democratic projections in the Senate suggest a razor-thin majority in 2020, and with the obvious objection from Republican Senators, Democrats have a lot less room for opposition from within the party. In addition, even from Members of Congress who may approve of this legislation, the public backlash would be immense and crippling for the Democratic Party in the future. 51% of the American public oppose an increase in the number of Supreme Court seats, and that number is unlikely to change (“Partisan”). Notably, Nancy Pelosi has not endorsed this plan, and this unpopularity is likely the main reason why, as her first priority is to protect the Democratic majority in the House at all costs (“Pelosi”). For now, it seems that radical Democrats’ dreams of an obedient Supreme Court will remain a dream, and they will have to settle for replacing retiring Justices like Congress has done since 1869.

Works Cited

“Evaluating the Pelosi Speakership.” Mischiefs of Faction, 15 Aug. 2019, https://www.mischiefsoffaction.com/post/evaluating-pelosi-speakership.

Hall, Andrew B. “What Happens When Extremists Win Primaries?” American Political Science Review, vol. 109, no. 1, 2015, pp. 18–42., doi:10.1017/s0003055414000641.

Huebner, Timothy. “The First Court-Packing Plan.” SCOTUSblog, 3 July 2013, https://www.scotusblog.com/2013/07/the-first-court-packing-plan/.

"Prize Cases." Oyez, www.oyez.org/cases/1850-1900/67us635. Accessed 16 Oct. 2019.

Thomson-DeVeaux, Amelia. “Can The Supreme Court Stay Above The Partisan Fray?” FiveThirtyEight, 12 Aug. 2019, https://fivethirtyeight.com/features/can-the-supreme-court-stay-above-the-partisan-fray/.

Thomson-DeVeaux, Amelia. “The Supreme Court Might Have Three Swing Justices Now.” FiveThirtyEight, 2 July 2019, https://fivethirtyeight.com/features/the-supreme-court-might-have-three-swing-justices-now/.

Waxman, Olivia B. “The History of FDR's Court-Packing Plan.” Time, https://time.com/5702280/court-packing-history/.

Comments

  1. Bridget MurphyOctober 18, 2019 at 12:42 PM

    I really enjoy judicial politics and think you did a nice job highlighting the history and the arguments for and against court packing. Though I am frustrated with many of the rulings our highest court has made over the past 50 years, I am not in favor of expanding the number of seats on the Supreme Court. I think as we saw in 2016 when Mitch McConnell triggered the “nuclear option” concerning Supreme Court Justices after Harry Reid did the same in 2013 for lower court judges, the parties are not above “one-upping” each other and using retaliatory tactics. If Democrats were to increase the number of seats if they won a Senate majority in 2020, Republicans in a few years would mostly likely come back and use that as precedent to do the same, and our third and "apolitical" branch of government be further politicized. I think you did a good job reflecting on the politics surrounding the SCOTUS. Many Democrats will never forget nor forgive Mitch McConnell for not allowing Merrick Garland even a hearing in the Senate. That move created true resentment within a lot of people, and demonstrated that politicians want judicial requirements to be about how judges will vote rather than their judicial experience, qualifications and integrity.

    ReplyDelete
  2. KaitlynAndersonOctober 22, 2019 at 12:40 PM

    This was a very interesting article! This is something that I have not heard much about. I think that by allowing more justices, this definitely allows the parties to try to outdo each other and suppress the minority. You did a really great job explaining everything and I learned a lot from your post!

    ReplyDelete
  3. Eric KrawczykOctober 24, 2019 at 2:06 AM

    This is a very well written blog post. I did not know that fact about court packing following the civil war. It would be interesting to think about how our nation is as polarized (if not more) than it was during reconstruction. Thus, it is interesting to think about how that has an affect on our court system too.

    ReplyDelete

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