Third Way: The Historic And Present Packing Of The Supreme Court
Garen Meguerian
While Trump was president, he appointed three Supreme Court justices to the bench. This is the greatest number of justices appointed by a president since Ronald Reagan was in office. These three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are all under fifty-years old which means that, according to a Pew Research Center analysis, they are likely to serve on the bench for the next twenty years, holding an influence over the court system and America’s laws for far longer than Trump’s four-year presidency. Two of the justices were extremely controversial to the American public as Brett Kavanaugh was accused of sexual assault and Amy Coney Barrett was nominated by Trump only a month before the 2020 presidential election, even though Obama was prevented from nominating a Supreme Court justice more than six months before his presidential term ended (which led to Trump appointing Neil Gorsuch). The controversy surrounding these three nominees to the Supreme Court, which has historically always had nine justices, has led to progressives of the Democratic party calling to expand the Supreme Court to 13 justices.
The History of the Supreme Court
The Supreme Court, which is the highest authority in the judiciary branch of the federal government, was established by the U.S. Constitution. The Supreme Court is arguably one of the most important of the institutions of government, as they have the final say on the constitutionality of all the nation’s laws. The Supreme Court is responsible for hearing certain court cases and deciding whether they are constitutional or not, which can affect laws that are applicable in only one state, laws passed by Congress, or presidential executive orders. When the court decides that something is unconstitutional, this sets a binding precedent for any other court cases with substantially similar facts in the future.
The Supreme Court has been incredibly influential throughout the years, in both good and bad rulings. While they originally voted to uphold segregation and separation of blacks and whites in the Plessy v Ferguson case, they were later responsible for declaring segregation unconstitutional and mandating that all schools be integrated. They were also responsible for legalizing both abortion in Roe v Wade and gay marriage in Obergefell v Hodges, creating safer and more equal lives for these groups.
While the Founding Fathers and the U.S. Constitution created the Supreme Court, they left it up to Congress to determine how many justices would sit on it – and the number has not always been nine. The very first Supreme Court, during Washington’s presidency, had six justices on it. Ironically, the current calling for the increase of Supreme Court justices is not the first time that the number has been changed – or proposed to change – in order to benefit or disadvantage a specific president or party. When John Adams was president, he and Congress passed a bill that lowered the number of justices to five in order to prevent Jefferson from nominating a new justice while he was in office. In 1866, Congress again decreased the number of Supreme Court justices, this time from nine to seven, to ensure that then-President Johnson would not appoint a new justice during the era of Reconstruction. In 1869, Congress finally settled on nine justices and the number has remained the same since then. However, during FDR’s presidency, he proposed a new piece of legislation that would either have justices over 70 retire or allow him to appoint an extra justice for every un-retired justice over 70 in order to gain more support for his New Deal. This legislation ultimately did not pass in Congress but demonstrates a previous time in history when a party has tried to “pack the court”.
Packing the Court in 2021
All of this has led to the current moment in time – progressive Democrats calling for the number of Supreme Court justices to increase from nine to thirteen. If this legislation were to pass, Biden would be in office to appoint the four new justices, which would place a liberal majority in the Supreme Court. The moderate Democrat leaders in the government, such as Nancy Pelosi and President Biden, have stated that they do not necessarily agree with the progressive plan. Instead of moving forward with the vote, Biden has created a bipartisan commission of law and history scholars, former federal judges, and court reform advocates. The purpose of the commission is to analyze all the arguments regarding Supreme Court reform, including but not limited to the “packing of the court” and imposing term limits on justices.
Packing the court now would revert the legitimacy of the American federal justice system that countries all over the world have tried to attempt as well. This would also cause an even greater polarization and divide between the two American parties than currently exists. A Morning Consult/Politico poll showed that about 46% of voters wanted the numbers of justices to remain the same while only 20% want to increase the number (the rest are undetermined). Prominent Democratic Supreme Court Justices Stephen Breyer and the late Ruth Bader Ginsburg have also previously spoken out against increasing the number of justices.
While as a Democrat I cannot pretend that having a liberal-majority Supreme Court would not be beneficial towards my values and ideas regarding the constitutionality of certain laws, the Supreme Court was never supposed to be about party values. Increasing the number of justices in order to benefit one party undermines the very legitimacy of the Supreme Court and makes it so that justices feel more pressure to rule on the side of the majority party. In the past, justices have often voted against their partisan leanings or the president who appointed them simply because it is not about the party or their personal beliefs – the Supreme Court exists solely to interpret the constitutionality of certain laws. While it is unfortunate that the latest appointed justices were so controversial and hold extremely strong positions on the right, packing the court in favor of any party would decrease the legitimacy and constitutionality of the Supreme Court. If the Democratic party truly believes that the Supreme Court needs reform, the best way to do this would be to carefully analyze the finished report that Biden’s bipartisan commission will release and take steps from there.
