Packing the Court
152 years. It has been 152 years since the last alteration was made to the number of justices seated on the Supreme Court.
Initially, the Supreme Court was established with six justices by the Judiciary Act of 1789. Between 1789 and 1869, Congress made seven changes to the number of justices seated on the court dipping as low as five and climbing as high as ten, before the Judiciary Act of 1869 set the number at nine, where it has remained for 152 years.
Something being old and entrenched is neither an argument for nor against its continued, unchanged existence. There are many reforms from which the Supreme Court, and the judiciary at large, would benefit. Those reforms, however, should be carefully considered, and not quickly adopted.
As for the current proposal, expanding the Supreme Court to 13 justices, it is difficult to view it as anything other than an attempt by the Democrat party to take control of the high court. Democrats made a couple arguments in support of expanding the court in their initial remarks and follow-on press engagements that really highlight why this move is not about rectifying any legitimate issues with the judiciary but will more likely exacerbate existing issues. Most Democrats see the Supreme Court as a 6-3 conservative majority (many Republicans would argue it’s more like 5-4 as Justice John Roberts has made some highly questionable rulings from a conservative perspective). By increasing the number of Justices to 13, with immediate effect, Democrat President Joe Biden would get to appoint 4 new justices reversing the court to a 7-6 left-leaning majority.
Democrats believe that the Supreme Court was stolen from them. In 2016, Democrats thought they had an opportunity to replace a conservative Justice Antonin Scalia with President Obama’s nomination of Merrick Garland. Senator Mitch McConnell (R-KY) extinguished those hopes by denying Garland a confirmation hearing. When President Donald Trump was elected, he nominated Justice Neil Gorsuch. Justice Gorsuch (rated +0.75 conservative) replaced Justice Scalia (rated +1.75 conservative). President Trump then nominated Justice Brett Kavanaugh (rated +0.5 conservative) to replace Justice Anthony Kennedy (rated +0.25 conservative). Justice Gorsuch, a full 1 point to the left of the Justice he was replacing, garnered three confirmation votes from Democrats; Justice Kavanaugh got one Democrat vote. Two conservatives replaced two conservatives and moved the court to the left.
Democrats have a much stronger argument for a “stolen” Supreme Court seat with the replacement of Justice Ruth Bader Ginsburg. Senator McConnell denied Garland a hearing because the country was in the throes of a presidential election. That was a really intellectually defunct argument. Article II, Section 2 of the Constitution allows for the President of the United States to appoint Supreme Court justices with the “advice and consent of the Senate.” Senator McConnell could have argued that the Senate did not give its consent, that the Republican controlled Senate, would not confirm the opposition party’s nomination. Instead, by tying the denial to the upcoming election, Senator McConnell set up Republicans to look really bad when the Senate confirmed Justice Amy Coney Barret with zero Democrat support just eight days before President Trump lost the 2020 election. Justice Barrett’s confirmation was entirely Constitutional. The Senate chose to provide consent. This, no doubt, added additional insult to injury for Senate Democrats.
It is certainly understandable that Democrats would be dissatisfied with the current disposition of the court, and even feel slighted by how the current disposition came to be. The current makeup of the Supreme Court, however, was constituted in a wholly legal and Constitutional manner. To propose to expand the court now, to wrest control away from your political opponents will only further divide the country into their respective camps, further the politicization of the judiciary, and further erode confidence in the courts.
In fairness to the Speaker of the House, Representative Nancy Pelosi (D-CA), the Speaker said she had no intention to bring the expansion bill to the floor for a vote. Speaker Pelosi preferred to allow President Biden’s commission to study potential structural changes for the Supreme Court to run its course ahead of any legislation.
