Pack the court? Battles between Republicans and Democrats fuel clash over Supreme Court's future

Richard Wolf, USA TODAY

WASHINGTON – Democrats facing the prospect of a Supreme Court tilted 6-3 in favor of conservative justices have a number of rejoinders to consider if they win the White House and full control of Congress next month.

Fuming at what President Donald Trump and Republicans have done since 2016 to turn the court to the right, they could fight back with legislation, Senate rules changes – even by granting statehood (and two Senate seats) to the District of Columbia or Puerto Rico.

The most tantalizing prospect: packing the court.

Not since 1869 has the number of Supreme Court justices been changed. Not since 1937 has anyone seriously tried.

But as the Senate Judiciary Committee considered Trump's nomination of federal appeals court Judge Amy Coney Barrett last week, Democratic Sen. Sheldon Whitehouse of Rhode Island issued a warning:

“Don’t think that when you have established the rule of 'because we can,' that should the shoe be on the other foot, you will have any credibility to come to us and say, 'Yeah I know you can do that, but you shouldn’t," Whitehouse said.

He didn't specify what he had in mind. He didn't need to. A year earlier, Whitehouse warned the justices in court papers that if the high court did not "heal itself," the American public might demand that it be "restructured in order to reduce the influence of politics."

That was code, all 53 Senate Republicans complained in a letter to the justices, for packing the court. Since then, the voices on both sides have only gotten louder.

Given Barrett's imminent confirmation and polls predicting Democratic gains on Election Day, Whitehouse's threat could be front and center next year. After a procedural vote in the Senate Sunday that set up a possible final vote on her nomination for Monday, the high court could be back to nine members – six of them conservatives – as early as this week.

Here's what all the fuss is about:

On a foggy morning, protesters with the “Handmaids Brigade” march outside the Supreme Court prior to a hearing held by the Senate Judiciary Committee to vote on the nomination of Judge Amy Coney Barrett on October 22, 2020, in Washington, D.C.
On a foggy morning, protesters with the “Handmaids Brigade” march outside the Supreme Court prior to a hearing held by the Senate Judiciary Committee to vote on the nomination of Judge Amy Coney Barrett on October 22, 2020, in Washington, D.C.

High court history

No American alive today can recall a Supreme Court without nine justices, other than because of a temporary vacancy.

But the Constitution does not set the number, and it has changed a half-dozen times before. Created in 1789 with six justices, the court has veered from five to 10 at the whim of presidents and Congresses. The Judiciary Act of 1869 set the number at nine, and it hasn't been changed since.

Not that it hasn't been tried. The closest call came in 1937, when President Franklin D. Roosevelt proposed giving himself the power to name up to six more justices who would back New Deal legislation. That effort died in the Senate along with its chief sponsor, who suffered a heart attack.

But was it a complete failure? Before FDR's effort, the conservative court obstructed his initiatives. But after he unveiled his proposal, the court upheld a law restructuring labor relations, and he went on to enjoy other successes.

'They started this'

Fast-forward to 1987. Battles over the federal courts escalated after President Ronald Reagan's Supreme Court nominee, Robert Bork, was defeated 58-42 in the Democratic-controlled Senate. Four years later, now-Associate Justice Clarence Thomas nearly was blocked after allegations of sexual harassment.

The judicial wars extended to lower courts as well. Democrats blocked President George W. Bush's nomination of Miguel Estrada to the powerful U.S. Court of Appeals for the District of Columbia Circuit in 2001. Two current members of the Supreme Court, Chief Justice John Roberts and Associate Justice Elena Kagan, were blocked from that appeals court as well, though Roberts eventually was confirmed for a seat on that bench.

The partisan warfare escalated to a new level in 2013, when Republicans blocked President Barack Obama from filling three vacant seats on the D.C. Circuit. To break the impasse, Democrats changed Senate rules to strip the minority party of their power to filibuster lower-court nominees.

"They started this, not me," Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., said Thursday as the panel voted to send Barrett's nomination to the Senate.

Republicans retaliated in 2016 by blocking Obama's nomination of federal appeals court Judge Merrick Garland to succeed Associate Justice Antonin Scalia. Garland would have flipped the high court to having a majority of justices named by Democratic presidents, so Republicans held the seat open for 14 months.

More: Conservatives, liberals mull next Supreme Court battle with memories of 2016

After Trump was elected and nominated federal appeals court Judge Neil Gorsuch to the Scalia seat, Democrats used the filibuster to block him, so Republicans changed Senate rules to eliminate that minority power. Gorsuch was confirmed in 2017, Brett Kavanaugh followed in 2018, and this year, Republicans reversed their 2016 precedent and pushed Barrett through the confirmation process in the midst of an election.

Throughout the decades-long battle, the message has been clear: Republicans and Democrats alike will use whatever power they have to confirm their preferred judges and justices and block the other side. Now, faced with a 6-3 conservative court, Democrats are contemplating the next step.

Democrats in disarray?

Calls for Democrats to "pack the court" if they win the White House and Senate and retain control of the House emanate from the far left of the party's ranks.

Led by groups such as Demand Justice and Take Back the Court, the rationale is that Republicans starting in 2016 blocked Democrats from establishing a 5-4 majority in an election year, then reversed themselves and elevated their own nominee to win a 6-3 majority that could last for decades.

But with former Vice President Joe Biden initially "not a fan" of the idea and only now proposing to establish a commission to look at options, most mainstream Democrats have held back. The party platform calls only for adding judges to federal trial and appeals courts, which is one way to counter Trump's success in winning Senate confirmation of more than 200 judges in the past 3½ years.

More: President Trump has transformed the federal courts, but John Roberts still leads them

The flag-draped casket of Justice Ruth Bader Ginsburg arrives at the Supreme Court in Washington on Sept. 23. Ginsburg, 87, died of cancer on Sept. 18.
The flag-draped casket of Justice Ruth Bader Ginsburg arrives at the Supreme Court in Washington on Sept. 23. Ginsburg, 87, died of cancer on Sept. 18.

“We are glad to see growing recognition of the desperate need for reform," Aaron Belkin, director of Take Back the Court, said Thursday. "But we don’t need a commission to tell us that a stolen, partisan Supreme Court is bad for America. We just need to take it back.”

Yet even Associate Justice Ruth Bader Ginsburg, in July 2019, said, "Nine seems to be a good number."

"If anything would make the court look partisan, it would be that – one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to,'" she told NPR.

Protesters opposed to the confirmation of President Donald Trump's Supreme Court nominee Amy Coney Barrett rally at the Supreme Court on Oct. 14.
Protesters opposed to the confirmation of President Donald Trump's Supreme Court nominee Amy Coney Barrett rally at the Supreme Court on Oct. 14.

The issue divided Democrats during the presidential primaries. Pete Buttigieg, the former mayor of South Bend, Indiana, proposed having 15 justices named through three separate processes. Others, including Sen. Kamala Harris, D-Calif., now the vice presidential nominee, said they were open to court-packing as an option.

"We are on the verge of a crisis of confidence in the Supreme Court," Harris told Politico in March. "We have to take this challenge head on, and everything is on the table to do that."

Senate Minority Leader Chuck Schumer, D-N.Y., echoed that sentiment as recently as Thursday after Barrett cleared the Judiciary Committee, saying: "Everything is on the table when we get the majority."

GOP goes on offense

Because the idea is controversial, the phrase "pack the court" is uttered more by Republicans as the Barrett confirmation process and presidential election come to a close.

"Court-packing by either party would guarantee retribution when the Senate and the White House next changed hands," Senate Majority Leader Mitch McConnell, R-Ky., said. "The escalation would not end. Our independent judiciary would spiral into one more partisan battleground."

Supreme Court nominee Amy Coney Barrett meets with Senate Majority Leader Mitch McConnell, R-Ky., on Capitol Hill in Washington on Sept. 29. McConnell pushed the confirmation during an election year, something he refused to do in 2016.
Supreme Court nominee Amy Coney Barrett meets with Senate Majority Leader Mitch McConnell, R-Ky., on Capitol Hill in Washington on Sept. 29. McConnell pushed the confirmation during an election year, something he refused to do in 2016.

Rather than wait for Democrats to try packing the court, Republicans in the House and Senate have proposed constitutional amendments that would set the number of justices at nine. A group of former state attorneys general is lobbying for the same thing under the banner "Keep Nine."

Said Graham at Thursday's Judiciary Committee meeting: “I don’t know where this ends or how it ends.”

Potential alternatives

If Biden wins the presidency and establishes a commission, it likely will examine additional proposals. Among the most prominent is establishing term limits for Supreme Court justices.

A growing list of legal scholars supports ending life tenure for justices, but implementing it would be difficult. It almost certainly would require a constitutional amendment, or some proponents believe there is a way for Congress to pass legislation requiring that justices retire, take "senior" status with lesser duties or move to an appeals court.

Legislation introduced in the House calls for future justices to serve a maximum of 18 years so eventually each president would get two nominations per four-year term. It has the support of Fix the Court, which advocates for increased transparency and accountability.

"The Supreme Court is too powerful and too political, and we need to do something about it," Fix the Court executive director Gabe Roth said after Biden's pledge to form a commission. “With justices serving twice as long on average as they did a few generations ago, and with nearly every major case being decided by the slimmest of margins, it’s in the country’s long-term interest to build a court that’s less reliant on the health of octogenarians and more capable of compromise."

This article originally appeared on USA TODAY: Could Amy Coney Barrett's confirmation fuel Supreme Court expansion?