Packing the Supreme Court – What You Need to Know

Supreme Court Building depicting court packing

Vice President Mike Pence held a rally in Waterford, Michigan, on October 22, 2020. During his hour-long speech, he referenced the 60 minutes interview with Democratic presidential nominee Joe Biden.

In a clip that has been aired, Biden called the court system a “live ball.” He said would establish a commission to reform it. Pence insisted it meant Biden would pack the court. 

However, what does the term “court packing” mean?

If you Google the term, you will see a full page of news articles. Many of them accuse our current administration of court packing for nominating Judge Amy Coney Barrett to the vacancy left by the late Justice Ruth Bader Ginsberg.

You will also see several articles insisting that court packing isn’t the scary proposition the Trump campaign is making it out to be and that our Supreme Court needs reform to save our democracy. 

What Is Court Packing?

Despite what you might read or hear to the contrary, the term court packing refers to “changing the structure of the judiciary to add judges deemed likely to render favorable decisions,” according to The Heritage Foundation.

In other words, adding to the number of Supreme Court Justices to get a majority of Justices on the bench who will favor certain ideological ends over others. 

When those on the left call nominating and confirming Judge Barrett “court packing,” they are using a clever rhetorical tactic. In 2016, at the end of President Obama’s two terms in office, the Republican-controlled Senate would not confirm his nomination, Merrick Garland.

Instead, they waited to see the election results and confirmed the nominee his successor, President Trump, chose.

Democrats are arguing that the GOP-controlled Senate should wait until after the election. However, filling a vacant seat on the Supreme Court – a tie-breaking seat – is not the same thing the would-be Biden administration admits they are thinking about doing. 

The History of Court Packing

The Constitution does not enumerate a number of Supreme Court Justices. It has never had more than 10, and the number has remained at nine since 1869.

However, in 1937, when Franklin Roosevelt won re-election, he tried to convince Congress to add seats to the Supreme Court. He did this to ensure that his New Deal would be upheld and not struck down.

Roosevelt was unsure his economic plan would go over, even with a supermajority of Democrats controlling both the House and the Senate. Congress rejected the bill. They said it would “undermine the independence of the courts” and “expand political control over the judicial department.” 

Why would something a majority of Democrats 80 years ago thought would be disastrous suddenly be a good idea? 

Some Things to Know About Packing the Court

  • Congress decides the number of Justices, which is why you have seen prominent Democrat congress members talking about also ending the filibuster.  Filibuster means failure to end debate. If Congress can’t end a debate, the majority can’t force a controversial bill into law. The filibuster has been part of the Senate’s process since 1900.
  • Judicial Independence sets our system of government apart. According to the Heritage Foundation, it was one of the most important differences between America and Great Britain. Our Supreme Court is supposed to be free from political manipulation. 
  • Judge Amy Coney Barrett has been clear in her intention to keep it that way.
  • All congress members in favor of court packing are Democrats. All activist judges on the Supreme Court have ruled in favor of left-wing ideologies. 
  • Even the late Justice Ginsburg – who was one of those activists – was opposed to court packing. 

Here’s Why Ginsburg Was Opposed to Packing the Supreme Court

Current rules dictate that if 41 Senators vote against ending a debate (for instance, on a court packing bill), the bill cannot pass the Senate and can’t become law. If some of our Senators who want to “end the filibuster” get their way, any time Congress has a simple majority of one party or the other, that party can exploit it to change policy. 

Maybe this time, Joe Biden gets elected, and the House and Senate both are under the Democratic party’s control. They could vote to end the Filibuster and pack the court. Then, they add seats to the court and fill them with liberal Justices.

The next time Republicans gain power, they do the same thing, adding more seats to the court to balance the power in their favor. The Supreme Court could become a law-making branch and supersede Congress. And it will flip every time a new party comes into power. 

Takeaway

Our founders attempted to create a system that would remain stable through opposing viewpoints in other government branches. Supreme Court Justices are sworn to uphold the law and be impartial. However, packing the court could destabilize our government to such an extent that we would never recover.