What Does It Mean to Pack the Court?

The Supreme Court. Photo: Jim Watson/AFP via Getty Images

The death of Justice Ruth Bader Ginsburg in September created chaos on the nation’s highest bench; now, it looks almost certain that Senate Republicans will jam through President Donald Trump’s pick, Amy Coney Barrett. A devout Catholic, Barrett’s past ties to anti-abortion groups worry Democrats, as do her past statements on the Affordable Care Act and her apparent reluctance to separate church and state. For Republicans, a Barrett confirmation cements a 6-3 right-leaning majority; for Democrats, it seems to guarantee a partial judge, one they fear will reliably side with those who hoisted her into the position.

Trump has already made two appointments to the Supreme Court. The first seat he filled opened with the death of Antonin Scalia in early 2016, while Barack Obama was still president. Back then, Senate Republicans thwarted President Obama’s nominee, arguing that allowing a sitting president to replace a justice in an election year robs voters of their right to weigh in on the process. The reversal of opinions four years later strikes Democrats as unfair, particularly given Trump’s allegiance to a staunchly conservative legal group in making judicial appointments. Now, some on the left have suggested that, if Republicans force Barrett’s confirmation and Trump loses the election, they will try to restore ideological balance by packing the Supreme Court — i.e., expanding the number of seats on the bench — in 2021.

“We should leave all options on the table, including the number of justices that are on the Supreme Court,” progressive New York Representative Alexandria Ocasio-Cortez said after Ginsburg’s death.

Here are all your questions about court-packing, answered.

Wait, back up, what does court-packing mean?

Court packing means adding judges to a court, and in this case, adding justices to the Supreme Court. The Constitution does not specify how many justices must sit on the bench, so Congress can change the number from the current nine simply by passing a law. If the president signs it, they would then have another seat to fill.

Is there precedent for adding to the court?

Yes: The number of justices has occasionally changed at different points in history. The court started off with six, George Washington–nominated judges, a number that shifted with the political tide for the next eight decades. As the Washington Post reports, “In the Civil War era, the court expanded and shrank like an accordion,” with Republicans under Lincoln adding a seat in 1863, then constricting the bench to seven people to keep Andrew Jackson from adding to it. We’ve had nine justices since 1869, when Congress gave President Ulysses S. Grant two vacancies to fill. But in 1937, President Franklin Delano Roosevelt unsuccessfully attempted to expand the bench to seat up to 15 people, proposing that one new justice be added for each existing member over 70 who refused to step down.

Is that not sort of what the Republicans are doing now, playing the numbers to their favor?

Are they rushing to confirm a Trump Justice simply for the legal advantage of tipping the court in favor of an (increasingly hardline) conservative agenda? Yes. Are they proposing we play with the numbers on the bench in order to achieve their goal? No, not right now; right now, they are explicitly seeking a nine-Justice court, with an eye toward securing a favorable ruling in the case of a contested election. So, not court packing, but not exactly the objectivity and fairness one hopes for in a democracy.

What are the arguments in favor of court packing?

In 2016, when Justice Antonin Scalia died about nine months before the presidential election, Republicans in general — and Senate Majority Leader Mitch McConnell in particular — blocked President Barack Obama from nominating a replacement, arguing that “the American people should have a voice in the selection of their next Supreme Court Justice,” to quote McConnell. In that context, the scramble to confirm whomever Trump suggests looks hypocritical to many Democrats, and also unsavory, because it would shore up the court’s increasingly extreme conservative ideological bent. (The Federalist Society, which gave Trump Barrett’s name, has furnished nearly all the president’s judicial nominations.) The court is supposed to exist as a check on the legislative branch, after all, not as a rubber stamp for like minds in Congress. Therefore, some Democrats view court-packing as a way to reestablish balance and mitigate partisan skew in rulings.

“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Senate Minority Leader Chuck Schumer said after Ginsburg’s death, according to the New York Times. Massachusetts senator Elizabeth Warren has also argued that court-packing is “not just about expansion, it’s about depoliticizing the Supreme Court.”

What are the arguments against court packing?

Opponents might say that reactive partisan attempts to mess with the court reinforce impressions that the institution can be leveraged as a political tool. As longtime political journalist and current fellow at the Brennan Center for Justice, Walter Shapiro, wrote: “The problem with 21st century efforts to reshape the Supreme Court is that, while legal, they seem like a banana-republic attempt to change the rules in the middle of the game.”

McConnell has argued a similar point, albeit from a disingenuous perspective. “Court-packing by either party would guarantee retribution when the Senate and the White House next changed hands,” he wrote in a recent statement. “The escalation would not end. Our independent judiciary would spiral into one more partisan battleground.” McConnell, of course, currently has the power to ensure that prophecy comes true, and then, it is hard to imagine another outcome when one party allows a deeply partisan organization to make all its judicial appointments.

Republicans (like Vice-President Mike Pence) have also suggested that the Democrats would violate the constitutionally demarcated separation of powers in interfering with the court’s makeup. Again, the constitution allows for justice numbers to expand and contract, so that argument doesn’t hold much weight — particularly when both sides have a hand in the pot. And then, a new study indicates that Republicans have few qualms about packing Supreme Courts on a state level.

Where do Biden and Harris stand on court packing?

Democratic nominee Joe Biden said last year that he thinks court packing is “political football” and “a bad idea,” one that would “come back to bite us.” In the wake of Ginsburg’s death, however, he has increasingly avoided specifics on the subject, saying at the presidential debate in late September, “Whatever the position I take on that, that will become the issue.” Last week, he told reporters that the public “will know my opinion on court-packing when the election is over,” and separately refused to elaborate, declining “to play his game,” referring to Trump.

On Tuesday, Biden was slightly more clear, telling Cincinnati’s WKRC: “I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused.”

Kamala Harris, by contrast, has addressed court-packing directly. In March 2019, Senators Harris, Warren, and Kirsten Gillibrand told Politico that court-packing was one possible check on McConnell’s efforts to push the judiciary to the right. “We are on the verge of a crisis of confidence in the Supreme Court,” Harris said. “We have to take this challenge head on, and everything is on the table to do that.”

At the vice-presidential debate, Harris didn’t give a clear answer on court-packing at all. “The American people deserve to make the decision about who will be the next president of the United States, and then that person can select who will serve for a lifetime on the highest court of our land,” she responded to Pence’s question on the topic. She then shifted the conversation to Trump’s many judicial selections, saying: “Do you know that of the 50 people who President Trump nominated to the courts for lifetime appointments, not one is Black? This is what they’ve been doing. You want to talk about packing the courts, let’s have that discussion.”

What Does It Mean to Pack the Court?