After the Senate confirmed Amy Coney Barrett to the United States Supreme Court last night—elevating the known anti-abortion rights judge to the highest court in the land—Representative Alexandria Ocasio-Cortez had three words to say: "Expand the court."
Republicans do this because they don’t believe Dems have the stones to play hardball like they do. And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.
— Alexandria Ocasio-Cortez (@AOC) October 27, 2020
The idea of expanding the court (also known as court packing) is gaining traction within the Democratic Party's more progressive flank, especially after the death of Justice Ruth Bader Ginsburg left a Supreme Court seat vacant under the Trump administration. Although Democratic presidential nominee Joe Biden has rejected the notion in the past, recently, he's evaded an explicit position on the matter and embraced the possibility of broader court reforms.
Given the lifetime and unelected appointments of justices, the Supreme Court is arguably one of the most undemocratic institutions in the country. As calls for court reform continue to grow louder, read on for an explanation of everything you need to know about packing the court.
What is court packing?
Simply put, court packing refers to the process of Congress adding more seats to the Supreme Court in an effort to secure a majority.
Since 1869, there have been nine seats in the United States Supreme Court, but that number is subject to change. The Constitution grants Congress the power to either add or subtract seats; the Supreme Court has seen as few as five justices and as many as 10 throughout its 231-year existence.
Progressives like AOC and Representative Ilhan Omar are now calling to expand the size of the Supreme Court following the confirmation of President Trump's latest nominee, Amy Coney Barrett, whose ascension lends a conservative majority to the court. Democrats argue that expanding the court is a defensive strategy against the Republican-controlled Senate, which has the constitutional power to confirm Supreme Court justices.
In 2016, for instance, then president Barack Obama nominated Merrick Garland following the death of Justice Antonin Scalia, but Senate Majority Leader Mitch McConnell withheld a vote on his nomination, citing being in an election year for his refusal. Fast-forward to 2020 and the Senate quickly pushed through Barrett's confirmation just weeks before the November 3 presidential election.
"Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year," said Senate Minority Leader Chuck Schumer, a Democrat, after RBG's death, per The Hill. "Nothing is off the table."
Should Democrats successfully win the White House, many within the party are pushing for an expansion of the court.
When did the idea of court packing start?
While the number of Supreme Court justices has fluctuated since its establishment, the idea of expanding the court and the last presidential attempt to do so is popularly traced back to President Franklin D. Roosevelt, who failed legislative bids in 1937 that could've increased seats on the Supreme Court from nine to 15.
At the time, the Supreme Court knocked down several of FDR's New Deal policies. In an effort to encourage older justices to retire, FDR pushed for the addition of a new seat for every justice older than 70 years old, as well as the restoration of full judicial pensions. Although the bill was ultimately not approved, aspects of it influence the politics of the Supreme Court today. As Judge Glock, a senior policy adviser for The Cicero Institute, writes for Politico …
With partisanship at new heights, justices now practice “strategic retirement,” meaning that they in effect pick their successor. This leads to long-term “conservative” and “liberal” seats and makes every appointment one whose effects linger for many decades. These strategic retirements further elevate the importance of every court appointment and help make them near apocalyptic struggles that would have baffled the founders, who thought justices would either leave or die at random after they were on the bench.
Why have court sizes changed in the past?
The evolution in the size of the Supreme Court has historically followed partisan power struggles.
After signing the Judiciary Act of 1789 into law, George Washington set the number of Supreme Court justices at six. Split decisions by an even number of seats weren't a concern for the Founding Fathers. "They never even thought about it, because all the judges were Federalists and they didn't foresee great disagreement," Maeva Marcus, a research professor at the George Washington University Law School, told History. "Plus, you didn't always have all six justices appearing at the Supreme Court for health and travel reasons."
By 1800, partisan tensions over the Supreme Court were bubbling up. After President John Adams lost his reelection to Thomas Jefferson, he and the Federalist Party passed the Judiciary Act of 1801 in order to minimize the chances of Jefferson nominating a justice during his own administration. Despite this legislative overhaul, Jefferson repealed the act once in office.
Flashing forward to the era of the Civil War, the size of the Supreme Court had again increased in order to cover new circuit courts in the expanding country. After the pro-slavery Dred Scott decision, Abraham Lincoln's administration added a 10th seat to the Supreme Court in 1863. Then, in 1866, Congress slashed the number of Supreme Court seats down to seven in an attempt to keep Lincoln's successor, Andrew Jackson (a staunch opponent of Reconstruction), from possibly filling a vacant seat.
The last change to the Supreme Court occurred in 1869. After Ulysses S. Grant took the Oval Office, Congress returned the number to Supreme Court seats of nine.
What's the opposition to expanding the court?
While Republicans have long packed state courts, the party is making attempts to prevent Democrats from expanding the size of the Supreme Court. Ohio representative Jim Jordan even submitted a resolution to Congress in September that, if passed, would formally hold the number of Supreme Court seats to nine.
"Whereas any attempt to increase the number of Justices of the Supreme Court of the United States or 'pack the court' would undermine our democratic institutions and destroy the credibility of our Nation's highest Court," the resolution reads.
In 2019, too, Senator Marco Rubio introduced an amendment that would permanently limit the size of the Supreme Court to nine justices.
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