By Elijah Wiesman, Staff Writer
In a knee-jerk response to judicial rulings not to their liking, a smattering of Congressional Democrats have authored a bill that would increase the number of justices on the Supreme Court from nine to thirteen. Often referred to as court packing, this strategy seeks to give the party in power numerous judicial appointments at once in an effort to shift the ideology of the Court. Given that the number of justices on the Court is not specified, adding justices is wholly within the bounds of the Constitution. Still, the classic nine justice panel has been a staple of American democracy since 1869. While specifically having nine justices appears arbitrary, a shift from the status quo at this point would have drastic ramifications for years to come.
The most common argument against court packing is simple: it is a boldfaced political move that can easily be flipped on its head as soon as the opposing party takes control of the White House and Congress. In the context of the new legislation, the argument goes, when Republicans regain control they will simply add another four justices to their liking. This process of endless politicization of the Court will continue until the number of justices balloons to absurdity. Yet Republicans might not only add justices of their own. Given their purview under Article III of the Constitution, they could significantly alter the mandate of the Court’s appeals jurisdiction to mitigate the effect of the new liberal justices. Either way, irreparable harm would be done to the judicial system and the American peoples’ trust therein.
Nevertheless, the authors of the legislation claim that “when the Supreme Court will not respect the will of the people, Congress has the power and the duty to expand the court.” No matter how pleasing of a sentiment on its face this statement may be, it runs into a problem rather quickly: the American people don’t want to expand the Supreme Court. Thus, it seems utterly laughable to contend that packing the Court respects the will of the people. Moreover, while Senator Ed Markey is correct that “too many Americans have lost faith in the Supreme Court as a neutral arbiter of the most important constitutional and legal questions that arise in our judicial system,” the further politicization of the Court will only increase the number of Americans who lack faith in an already partisan system.
That the Supreme Court’s composition is the victim of political jockeying is not new. Throughout the 1800s, the party in power routinely altered the number of justices to serve their political purposes. However, this almost always led to a detrimental impact on the integrity of the judicial system. Finally, in 1869 a law was passed to set the number of justices at nine, where it has remained ever since. Understandably, taking lessons from antebellum America is not something that Democrats are in the habit of doing. Nevertheless, they need only to look to their party hero, Franklin Delano Roosevelt, for a warning about the fate of their legislation. In an attempt to reverse the repeated overturning of his New Deal legislation, FDR endeavored to pack the Court with liberal justices. However, his political stunt ended with colossal failure, as there was support in neither his party nor the American public for the radical recomposition of the balance of powers. The appetite for wiping away the independence of the judiciary seems to be even slimmer in our day, given the rampant partisanship in Congress that often seems to care more for party than country.
That being said, the bill’s proponents need only look to the words of the iconic woman whose vacancy created the overwhelming conservative majority in the first place, Ruth Bader Ginsberg, for further guidance. In an interview shortly before her death, she stated, “If anything were to make the court partisan it would be one side saying: ‘When we’re in power, we’re going to enlarge the number of judges so that we will have more people vote the way we want them to.'” This seems to be exactly what the small cohort of progressive lawmakers seek to do with their inconspicuously titled “Judiciary Act of 2021”.
Yet, there are far tamer alternatives to court packing that would ensure that the Court reflects the will of the American people and maintains legitimacy as a separate branch of government. These solutions include establishing term limits for justices, or constraining the number of appointments one president receives, among others. Those who proposed the bill, however, seem unwilling to engage with such ideas given their hunger for an immediate rebuke of the conservative majority on the Court. If they are not prudent, however, they may stumble into a judicial system far more politicized than the present.