Should Democrats pack the Supreme Court?

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Mike Bebernes
·Senior Editor
·8 min read
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“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

President Biden earlier this month signed an executive order establishing a commission to study potential reforms to the Supreme Court, including the possibility of adding seats to the nation’s highest judicial body. In a separate move, a group of congressional Democrats last week introduced a bill that would expand the court from nine to 13 justices.

The concept of adding seats to the Supreme Court that could be filled by Biden appointees, often called court packing, has gained steam in recent years among Democrats after former President Donald Trump was able to confirm three conservative justices to the court — with each confirmation battle sparking intense controversy. Trump’s first appointee, Neil Gorsuch, filled a seat that was open for nearly a year after then-Senate Majority Leader Mitch McConnell refused to allow a vote on Barack Obama’s nominee Merrick Garland. Brett Kavanaugh’s confirmation hearings became a flashpoint amid accusations that he had committed sexual assault. Amy Coney Barrett was confirmed less than a week before the 2020 presidential election, despite Republicans’ earlier arguments against appointing judges in an election year.

Those three appointments created a 6-3 conservative majority on the Supreme Court that many legal scholars say could dramatically alter existing precedent on everything from abortion rights, voting rights, environmental standards, gun control and LGBTQ equality. Faced with the reality that it could be decades before enough seats on the court open up to tip the partisan balance in their favor, many on the left have begun to view adding seats as their only option.

There’s nothing in the Constitution that designates the size of the Supreme Court. That decision is up to Congress. The number of seats changed several times in the century after the nation’s founding before settling on its current size of nine justices. In the 1930s, President Franklin D. Roosevelt proposed adding seats to the Supreme Court to circumvent a judiciary that was blocking his New Deal policies. He came up short, but the threat was seen as having compelled the sitting justices to stop standing in the way of his programs.

Why there’s debate

Progressive lawmakers argue that adding seats to the Supreme Court is the only way to counteract what they see as anti-democratic tactics used to establish the current conservative majority. “The court is broken, and make no mistake about it — the court is broken because Sen. Mitch McConnell, his Senate Republican colleagues and Donald Trump broke it,” said Sen. Ed Markey, D-Mass., who co-sponsored the bill to create a 13-seat court. Others argue that additional liberal judges would help balance a court that has become far more politically conservative than the American public on a number of important issues.

McConnell, now the Senate minority leader, said the Democrats’ plan would “threaten [the] judicial independence” that the Founders intended for the Supreme Court and ultimately “destroy its legitimacy.” His comments are echoed by most Republicans, who argue that court packing would be nothing more than a political power grab.

Court packing is also met with skepticism by some liberals, including current Supreme Court Justice Stephen Breyer, who said partisan battles would erode the public’s trust in the court. There are also fears that adding seats would set off an escalating back-and-forth in which the makeup of the court would change wildly based on whichever party has power in Washington.

What’s next

Biden’s Supreme Court commission was given 180 days to complete its analysis, though it’s not clear whether its final report will include recommendations for specific changes to the court’s makeup. Democrats’ court expansion bill appears to have little chance of advancing. House Speaker Nancy Pelosi has said she has “no plans” to bring it to the floor for a vote and the proposal seems equally doomed in the Senate.

Perspectives

Supporters

Adding seats would actually stabilize the court

“The status quo — the Court’s structure, its membership, the power it wields — is already destabilizing, extremist, and dangerous. Expanding the Court is not ‘radical.’ Expanding the Court is a reasonable, proportionate response to a system that obviously failed a long time ago.” — Jay Willis, The Appeal

The court’s current conservative majority is an impediment to the will of the people

“A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.” — Elie Mystal, The Nation

The Supreme Court has always been subject to partisan gamesmanship

“The Court today is a thoroughly political institution, one that has awarded itself the right to rewrite major health-care and voting-rights legislation. It is not reasonable to ask either party to ignore this fact, or to forfeit the opportunity to gain control of this vital power center just because a conservative justice happened to die while Barack Obama was president, or a liberal one did while Donald Trump was in office.” — Eric Levitz, New York

Democrats can’t allow the GOP’s underhandedness to go unpunished

“If they do nothing, then Trump, McConnell and the Republican Party will have gotten away with nearly wrecking constitutional democracy — and inflicting needless suffering on millions of Americans — for the sake of ideology, partisanship and venal self-interest. ” — Jamelle Bouie, New York Times

Democrats have an obligation to defend the causes they believe in

“The easiest way to talk about whether to expand the court is to cast it as an issue of values and policies that people actually care about. If — as they insist — Democrats are firmly committed to protecting reproductive, voting, labor, health care, and civil rights, it shouldn’t be difficult for any Senate candidate to say they will consider all options available to protect them, including expanding the court.” — David Sirota, Andrew Perez and Julia Rock, Jacobin

Seats can be added to the court in a measured, bipartisan way

“Playing hardball does not mean destroying the game. A Democratic president overseeing an expanded Supreme Court would be wise to seek nominees with substantial bipartisan support. … Whatever route Democrats take to expand the Court, they must do so in conversation with the public, with every care paid to preserving civic trust in the Court itself.” — Quinta Jurecic and Susan Hennessey, The Atlantic

The court’s independence was destroyed by the GOP

“The current court is flagrantly packed to protect big business against regulation, executive power against Congress and theocracy against religious liberty. … The way to undo these anti-democratic maneuvers is to expand the courts in the name of a democratic republic that would function in fact, not just in name.” — Todd Gitlin, USA Today

Opponents

Court packing plans are about power, not principle

“The idea of increasing the size of the high court is inherently part of an attempt to grab political control of the third branch of government by flooding it with new Democratic appointees. It would be a blatant power grab by a party that doesn’t believe there should be any curbs on its political agenda.” — Editorial, Washington Examiner

Court packing would undermine the legitimacy of the country’s most important legal body

“Merely because GOP appointees now hold a 6-3 majority on the High Court, progressives want to blow it up on a partisan Congressional vote. Adding Justices in this way would undermine the Court’s legitimacy with the American public, with perhaps lasting harm.” — Editorial, Wall Street Journal

Adding seats would make the court even more blindly partisan

“As a practical matter, court-packing would set in motion a series of interminable recriminations by which the Court would transmogrify into even more of a super-legislature than it already is.” — Josh Hammer, Newsweek

Court packing is much more extreme than anything Republicans have done

“The argument that Republicans have already ‘packed the court’ is a false equivalence. Yes, Republicans have used hardball tactics to keep open, or now to try to fill, vacancies. But these seats opened up in the natural course of events. They weren’t conjured out of nowhere in a fit of pique or vengeance.” — Rich Lowry, National Review

Adding seats now would spark an endless tit-for-tat that would destroy the court

“Court-packing could set off a chain reaction of court enlargement every time the Senate and the White House changed hands.” — Michael McGough, Los Angeles Times

Term limits for justices are a more reasonable solution

“Imposing term limits for justices, although more difficult to implement than a change in Senate rules, would, over time, create a court that is better balanced ideologically and more in sync with the public mood.” — Ruth Marcus, Washington Post

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