The Democrats' Plan to Pack the Supreme Court

KEY TAKEAWAYS

• Senate and House Democrats have introduced legislation to pack the Supreme Court, expanding the number of justices from nine to 13 in order to guarantee liberal victories at the court.
• The Biden administration also created a commission comprised almost exclusively of law professors to review proposed changes to the Supreme Court.
• A recent poll found just 26% of Americans support packing the Supreme Court, compared to 46% who oppose it.

Last week, Democrats in the Senate and House introduced legislation to pack the Supreme Court by adding four new justices. This marks a dramatic change. As recently as the last Democratic presidential primary, only one candidate – Tom Steyer – advocated packing the court, and even Senator Bernie Sanders opposed it. Democrats took the radical step despite a recent warning from Justice Stephen Breyer, a Clinton appointee, that increasing the number of justices will undermine the court’s legitimacy. A recent poll found just 26% of Americans support packing the Supreme Court, compared to 46% who oppose it.

The Democrats’ plan would be the first change in the number of justices on the court since 1869 – and easily the largest ever. Meanwhile, President Biden this month created a 36-member, heavily left-wing commission – co-chaired by President Obama’s White House counsel and comprised almost entirely of law professors – to consider and recommend changes to the Supreme Court.

A ruling party packing a nation’s highest court is a rare national embarrassment even in less developed countries. If Democrats manage to pack the Supreme Court, our country would join the august ranks of Venezuela in 2004 and Argentina in 1989. That any Democrats are seriously considering a plan to pack the courts is a sad development for the United States.  

The Independence of the judiciary

Given the history of court packing, it is troubling that the Biden commission has no historians among its members. That judges should rule based on the law and not their partisan allegiance is not a new idea, but countries rarely manage to put it into practice. The American judicial system became the envy of the world precisely because of its independence. A renowned historian of the American Revolution, Gordon Wood, has described it as the creation of judges who are “agents of the sovereign people somehow equal in authority with the legislators and executives.” Justices have, therefore, frequently ruled against the presidents and parties that put them on the court. Some of the most prominent, politically sensitive Supreme Court cases in history have involved justices ruling against the parties that put them in power, including U.S. v. Nixon and Youngstown Sheet & Tube Co. v. Sawyer.

The biggest threat to American judicial independence until now came in 1937. Following a series of losses at the Supreme Court, President Franklin Roosevelt proposed adding as many as six new justices. The plan sparked a national uproar. Ultimately, the court relented, upholding the National Labor Relations Act. It was derided as the “switch in time that saved nine,” and the court-packing plan was abandoned.

Today, scholars across the political spectrum regard it as a blunder. The political impact of the plan was catastrophic for the Democrats, who lost eight Senate seats, 81 House seats, and 12 governor’s mansions in the 1938 elections. Justice Ruth Bader Ginsburg agreed that it was a blunder.

Court-packing weakens independence by only allowing judges to retain meaningful power if they rule how the party in power wants them to. As one law professor observed at the time of FDR’s court packing scheme: “There are at least two ways of getting rid of judges. One is to take them out and shoot them, as they are reported to do in at least one other country. The other way is more genteel, but no less effective. They are kept on the public payroll, but their votes are canceled.”

In addition to court packing, the Biden commission will consider other ways to undermine judicial independence. One such idea is term limits for Supreme Court justices. Article III of the Constitution provides life tenure for federal judges, but some term-limit proposals would try to avoid a constitutional violation by merely mandating that justices take “senior” status after 18 years. Senior justices would hear cases as assigned by the chief justice.

The very existence of an executive-branch commission passing judgment on the Supreme Court raises separation of powers concerns. There have been judiciary-related commissions before, but none were controversial. They involved non-partisan topics like case management and judicial ethics. None of those commissions were given the specific task of recommending changes to the Supreme Court.

Why Nine is the Right Number of Justices

In addition to undermining judicial independence, the Democratic court-packing scheme lacks any impartial justification. As Justice Ginsburg said, “Nine seems to be a good number.” Every state’s highest court has between five and nine justices. Similar courts in other countries like Canada, Germany, and France have nine justices. The more justices on a high court, the more likely the court is to be a pawn of the ruling party. As a result of its 2004 packing, the Venezuelan high court grew to 36 justices, leading to the sad spectacle of the justices chanting slogans of support for President Hugo Chavez at the opening of their 2006 judicial year.

Democrats’ argument for packing the court is an embarrassing pretext. They claim that Republicans “stole” two seats by appointing Justices Neil Gorsuch and Amy Coney Barrett. Of course, nothing about those appointments or the vacancies they filled required changing any law. It is telling that the Democrats’ preferred solution is to add four new justices to address the supposed unfairness of the ordinary confirmation of two justices. By the most amazing coincidence, there would then be seven Democrat-appointed justices and six Republican-appointed justices instead of the current 6-3 breakdown favoring Republican appointees.

Another spurious justification for court packing is that there are now 13 federal judicial circuits, so there should be 13 justices. Before there were circuit courts, Supreme Court justices would “ride circuit,” hearing federal appellate level cases for the circuit they were assigned to. But that practice ended more than a century ago. Supreme Court justices do not hear circuit court cases, and every justice votes on every case granted certiorari upon appeal from the circuits. The chief justice assigns circuits to individual justices for which they are responsible for handling emergency requests, but the justices generally refer any significant requests to the full court. There is no administrative need for more justices based on the number of circuits, which has been 13 since 1982.

The Democrats’ true justification is obvious: they want to control the court so it will rule how they want. This venal motive is leading Democrats astray. Once the court has been so clearly politicized, there is no limit to how many times it can be packed. But it only has to happen once to destroy the court’s reputation for independence.