US Supreme Court Packing – Top 2 Pros and Cons

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The US Supreme Court building.

Source: Joe Ravi, “Panorama of the West Facade of United States Supreme Court Building at Dusk in Washington, D.C., USA,” CC-BY-SA 3.0, wikimedia.org, Oct. 10, 2011

Court packing is increasing the number of seats on a court to change the ideological makeup of the court. [1] The US Constitution does not dictate the number of justices on the Supreme Court, but states only: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” [2]

The number of justices on the Court, set at nine since the mid-19th century, has changed over the years. The court was founded in 1789 with six justices, but was reduced to five in 1801 and increased to six in 1802, followed by small changes over the subsequent 67 years. [14] [15] As explained in Encyclopaedia Britannica, “In 1807 a seventh justice was added, followed by an eighth and a ninth in 1837 and a tenth in 1863. The size of the court has sometimes been subject to political manipulation; for example, in 1866 Congress provided for the gradual reduction (through attrition) of the court to seven justices to ensure that President Andrew Johnson, whom the House of Representatives later impeached and the Senate only narrowly acquitted, could not appoint a new justice. The number of justices reached eight before Congress, after Johnson had left office, adopted new legislation (1869) setting the number at nine, where it has remained ever since.” [3]

The idea of court packing dates to 1937 when President Franklin D. Roosevelt proposed adding a new justice to the Supreme Court for every justice who refused to retire at 70 years old, up to a maximum of 15 justices. The effort is frequently framed as a battle between “an entrenched, reactionary Supreme Court, which overturned a slew of Roosevelt’s New Deal economic reforms, against a hubristic president willing to take the unprecedented step of asking Congress to appoint six new, and sympathetic, justices to the bench,” according to Cicero Institute Senior Policy Advisor Judge Glock, PhD. Roosevelt’s proposal was seen by many as a naked power grab for control of a second branch of government. Plus, as Glock points out, a then new law reducing Supreme Court pensions was preventing retirements at the very time Roosevelt was calling for them. [4] [5] [6]

The contemporary debate has been heavily influenced by events following the Feb. 13, 2016, death of conservative Associate Justice Antonin Scalia. Citing the upcoming 2016 election, Senate Majority Leader Mitch McConnell (R-KY) refused to consider President Barack Obama’s liberal Supreme Court nominee, Merrick Garland. At the time, there were 342 days remaining in Obama’s presidency, 237 days until the 2016 election, and neither the 2016 Democratic nor Republican nominee had been chosen. Because the Senate approval process was delayed until 2017, the next president, Donald Trump, was allowed to appoint a new justice (conservative Neil Gorsuch) to what many Democrats called a “stolen seat” that should have been filled by Obama. [5] [7]

The court packing debate was reinvigorated in 2019 with the appointment of conservative Associate Justice Brett Kavanaugh by President Trump after liberal-leaning swing vote Associate Justice Anthony Kennedy retired in July 2018. [1] In the wake of this appointment, South Bend, Indiana, Mayor Pete Buttigieg, then also a 2020 presidential candidate, suggested expanding the court to 15 justices in the Oct. 15, 2019, Democratic presidential debate. [8]

Then largely brushed aside as “radical,” the topic resurfaced once again upon the death of liberal stalwart Associate Justice Ruth Bader Ginsburg on Sep. 18, 2020. Liberals, and some conservatives, argued that the 2016 precedent should be followed and that Justice Ginsburg’s seat should remain empty until after the 2020 presidential election or the Jan. 2021 presidential inauguration. However, McConnell and the Republicans in control of the Senate, and thus the approval process, indicated they would move forward with a Trump nomination without delay. McConnell defended these actions by stating the President and the Senate are of the same party (which was not the case in 2016, negating—from his perspective—that incident as a precedent that needed following), and thus the country had confirmed Republican rule. Others argued as well that, since there was a chance that the results of the 2020 election could be challenged in the courts, and perhaps even at the Supreme Court level (due to concerns over the handling of mailed-in ballots), it was critical for an odd number of justices to sit on the Court (for an even number, such as eight, could mean a split 4-4 decision on the critical question of who would be deemed the next U.S. president, sending the country into a constitutional crisis). At the time of McConnell’s Sept. 18 announcement via Twitter, there were 124 days left in Trump’s term and 45 days until the 2020 election. Some have called the impending nomination to replace Ginsburg and the 2016/2017 events a version of court packing by Republicans. [5] [7] [9]

Supreme Court nominees can be confirmed by the US Senate with a simple majority vote, with the Vice President called in to break a 50-50 tie. [7]

Should Packing the US Supreme Court Ever Be Considered?

Pro 1

The Supreme Court is politically partisan and ideologically imbalanced. Adding justices would ensure that it never reflects only one party’s political agenda.

Of the last 19 Supreme Court Justices, Republicans have appointed 15, or 79%. [10] As of Sep. 22, 2020, with the death of Associate Justice Ginsburg, the court has five conservative justices and three liberal justices. [11]

Because Trump filled a seat that historical precedent says should have been filled by Obama, a third Trump appointee to fill Ginsburg’s seat further imbalances the court. When this sort of imbalance exists, court packing should be considered.

Leah Greenberg and Ezra Levin, progressive political organizers, argued, “We absolutely have to address the right-wing imbalance of the current court right now [Sep. 19, 2020]… There’s no way to rebalance the court without expanding it.” [10]

Ian Millhiser, JD, Senior Fellow at the Center for American Progress and Editor of Think Progress Justice, explains the danger of a partisan court: “a rigidly partisan Supreme Court risks radicalizing the electorate against democracy itself” and, thus, “[t]he case for court-packing is clear, and the course of action is obvious, if the Supreme Court tries to rig elections so that only Republicans can win nationally.” [1]

A conservative court could ensure Republican domination by ruling on matters like voting rights, essentially disallowing voting by majority Democrat groups like black voters, with voter ID, felon voting, and other disenfranchising laws. [1]

According to Sam Berger, JD, Vice President, Democracy and Government Reform at Center for American Progress, Republicans have engaged in court packing that demands a Democratic response: “If allowed to stand, conservative court packing will have real consequences for a generation or more. Conservative judicial ideologues can limit rigorous campaign finance reform; place a judicial stamp of approval on anti-democratic gerrymandering and voter suppression; undermine unions; and gut reproductive rights. They can also undermine future efforts at progressive reform through specious legal claims—and once the Supreme Court has ruled something unconstitutional, it can shut down policymaking in that space completely.” [12]

While the 2020 court packing debate is about a majority conservative Supreme Court, the political spectrum could easily be flipped, with conservatives fearing the loss of their ideals. The makeup of the Supreme Court should not reflect partisan politics, but should, instead, reflect the will of the people and be beholden only to the US Constitution.

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Pro 2

Historical precedent allows for more than nine Supreme Court Justices, and there are no laws against having more than nine.

The US Constitution does not specify the number of justices on the Supreme Court. [1] [2]

As the Supreme Court FAQs page notes, “The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.” [13]

Originally, there were six justices (1789), the number was reduced to five in 1801, increased to six in 1802, seven in 1807, to nine in 1837, and to 10 in 1863, before shrinking to seven in 1866, and rising again to nine in 1869. President Franklin Delano Roosevelt asked Congress to increase the number to up to 15 in 1937, but Congress did not agree. [14] [15]

Ultimately, the number of Supreme Court justices is arbitrary, easily revised by Congress, and ripe for change. Court packing could signal a new era of non-partisanship in the Supreme Court.

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Con 1

The Supreme Court is largely balanced. Court packing would increase political interference in an independent branch of government. It’s a slippery slope that would allow each president to add justices for rank political reasons.

The appointment of justices is mostly balanced historically. Since 1912, when the two major political parties settled into their current ideologies, 52 justices have been appointed: 28 by 10 Republican presidents and 24 by seven Democratic presidents.

Michael H. McGinley, JD, lawyer and former Supreme Court law clerk for Justice Alito, argued that packing the court would threaten the “rule of law and judicial independence.” He reasoned, “While the press tends to focus on the small handful of 5-4 decisions in high-profile cases, the justices more often find themselves in broad agreement on the most difficult legal issues of the day. And when there are disagreements, they are based on legitimate and reasonable differences of opinion about the law, not the justices’ personal policy preferences.” [16]

Erin Hawely, JD, Associate Professor of Law and former law clerk to Chief Justice John Roberts, and Heather Higgins, CEO of Independent Women’s voice, noted, “The argument about balance implies that the terms conservative and liberal apply to judges just like they do to political parties, even though those words have very different meanings and application when it comes to judicial philosophy.” [17]

Even Vice President Joe Biden, 2020 Democratic presidential nominee, is wary of court packing, stating in 2019, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” He later elaborated, “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.” [18] [19]

As Washington Post reporter Amber Phillips explained, court packing can be seen as “a maneuver that could come back to haunt Democrats when they’re out of power. What’s to stop a Republican president and Republican Congress from expanding it even more, to get what they want? That was a feature of the Reconstruction era.” [20]

Plus, the Supreme Court is fiercely independent, undercutting a simplistic view of its partisan leanings. Of the 67 decisions in 2019, the four Democrat-appointed judges voted together 51 times and the five Republican-appointees 37 times. Only 7 cases had the expected political split. [21]

The Supreme Court should not be subjected to the rank political machinations at the heart of court packing.

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Con 2

Historical precedent most strongly supports a nine-judge Supreme Court.

While the US Constitution does not specify the number of Supreme Court justices, neither does it specify that justices must have law degrees or have served as judges. [13]

However, historical precedent has set basic job requirements for the position as well as solidified the number of justices. The Supreme Court has had nine justices consistently since 1868, when Ulysses S. Grant was president. [14]

Changing the number of justices has been linked to political conniving, whether the 1866 shrinkage to prevent Johnson appointments or the 1801 removal of one seat by President John Adams to prevent incoming President Thomas Jefferson from filling a seat or the 1937 attempt by Roosevelt to get the New Deal past the court. [22] We should not break with over 150 years of historical precedent to play political games with the Supreme Court.

Jeff Greenfield, journalist, warns that breaking with precedent would cause trouble, stating, “if Congress pushes through a restructuring of the court on a strictly partisan vote, giving Americans a Supreme Court that looks unlike anything they grew up with, and unlike the institution we’ve had for more than 240 years, it’s hard to imagine the country as a whole would see its decisions as legitimate.” [23]

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Discussion Questions

  1. Should packing the US Supreme Court ever be considered? Why or why not?
  2. Does the current method of waiting until a Justice retires or dies and allowing the current president to appoint a new Justice work? Why or why not?
  3. Brainstorm and research what the ideal Supreme Court might look like and how to achieve that ideal. Consider how many justices, the nomination and approval process, term limits, and other ideas. Make sure to support your opinions and argue why this court would be the best.
1.Ian Millhiser, “Let’s Think about Court-Packing,” democracyjournal.com, Winter 2019
2.Legal Information Institute of Cornell Law School, “U.S. Constitution, Article III,”  law.cornell.edu (accessed Sep. 22, 2020)
3.Brian S. Smentkowski, “Supreme Court of the United States,” Britannica.com, Sep. 13, 2019
4.Judge Glock, “The Lost History of FDR’s Court-Packing Scandal,” politico.com, Feb. 24, 2019
5.Maggie Astor, “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing,” nytimes.com, Sep. 19, 2020
6.William E. Leuchtenburg, “When Franklin Roosevelt Clashed with the Supreme Court – And Lost,” smithsonianmag.com, May 2005
7.Abigail Covington, “Can a Supreme Court Justice Be Replaced in an Election Year?,” esquire.com, Sep. 20, 2020
8.Harper Neidig, “Buttigieg Defends Court-Packing Proposal at Democratic Debate,” thehill.com, Oct. 15, 2019
9.Mitch McConnell, twitter.com, Sep. 18, 2020
10.Leah Greenberg and Ezra Levin, “Should the size of the Supreme Court expand to change the ideological balance? | Pro/Con,” inquirer.com, Sep. 19, 2020
11.Axios, “The Political Leanings of the Supreme Court Justices,” axios.com, June 1, 2019
12.Sam Berger, “Conservative Court Packing,” americanprogress.org, Apr. 3, 2019
13.Supreme Court of the United States, “FAQs - General Information,” supremecourt.gov (accessed Sep. 22, 2020)
14.Elizabeth Nix, “7 Things You Might Not Know about the U.S. Supreme Court,” history.com, Oct. 8, 2013
15.National Constitution Center Staff, “Why Does the Supreme Court Have Nine Justices,” constitutioncenter.org, July 6, 2018 
16.Michael H. McGinley, “Should the Size of the Supreme Court Expand to Change the Ideological Balance? | Pro/Con,” inquirer.com, Sep. 19, 2020
17.Erin Hawley and Heather Higgins, “A ‘Balanced’ Supreme Court Isn’t the Point,” washingtonexaminer.com, July 9, 2018
18.Pat Rynard, “Joe Biden Interview: ‘Talk about the Future’ in Dem Primary,” iowastartingline.com, July 5, 2019
19.Matthew S. Schwartz, “If Republicans Confirm New Justice, Scholars Say Democratic Court Packing Is Possible,” npr.org, Sep. 20, 2020
20.Amber Phillips, “What Is Court Packing, and Why Are Some Democrats Seriously Considering It?,” washingtonpost.com, Sep. 22, 2020
21.Ilya Shapiro, “Liberal Supreme Court Justices Vote in Lockstep, Not the Conservative Justices,” usatoday.com, Sep. 10, 2019
22.Tyler Olson, “How Would Court Packing Work?,” foxnews.com, Sep. 22, 2020
23.Jeff Greenfield, “How Democrats Could Pack the Supreme Court in 2021,” politico.com, Sep. 19, 2020