Packing the Supreme Court? Don’t Go There
If the Court is expanded to 13 justices, America and progressives will come to regret it
Two senior Democratic legislators, Senator Ed Markey (D-MA) and Representative Jerrold Nadler (D-NY), are about to introduce a bill to expand the Supreme Court to 13 Justices. The legislation is promoted as a response to Republicans preventing consideration of President Obama’s nomination of Merrick Garland in 2016 and to how they won the confirmation of three Trump appointees: Associate justices Gorsuch, Kavanaugh, and Barrett. The argument is that the Republicans cheated and that expanding the court remedies that injustice.
There is little debate on whether Republicans “played dirty” with Supreme Court nominations while they were in power. Senator Richard Blumenthal (D-CT), expressing opposition to how the then-Republican majority handled Trump nominations, commented:
I’m deeply concerned the Supreme Court is losing the trust of the American people. President Trump and the Republican center are eroding and even destroying that legitimacy. They have stripped down the American people of their say in this process.
Two wrongs don’t make a right
Notwithstanding how Mitch McConnell and the Republican Senate handled Supreme Court nominations during McConnell’s tenure as majority leader, the issue of reforming the Court needs to considered on the basis of whether or not it is good policy. A look at the proposal to expand the court suggests no. The long-term negatives will offset the short-term benefit of producing a liberal majority on the Court.
Expanding the Court is not “Unconstittuional”
Is expanding the Court permitted under the Constitution? Yes. Article III, Section 1 reads:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The size of the Court has ranged from six to ten. Regardless of the history of past changes to the size of the Court, the legality of Congress setting the size of the Court is not an issue.
The risk of changing the Constitutional role of the Supreme Court
Regardless of its legality, it isn’t a stretch to argue that expanding the size of the court will destroy it. This is why it is no coincidence that Justice Stephen Breyer, a liberal justice, opposes it. Breyer told an audience at Harvard Law School:
It is wrong to think of the Court as another political institution. And it is doubly wrong to think of its members as junior league politicians. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.
The Court will not only be seen as a political institution but will be one. Despite recent Republican success at populating the court with conservatives, the court remains viewed as a non-political part of government. It is meant to be the neutral arbiter of disputes regarding Constitutional Law. Further action to politicize the Court could change how the Court is viewed by the public, which could destroy the balance of political power between the Executive, Legislative, and Judicial branches of government intended by the Constitution.
An expanded Court will become less rather than more efficient. The resolution of cases will become more complicated, and time-consuming with 13 justices rather than 9. Anyone who has attended decision-making meetings will tell you that putting more people in the room does not guarantee better deliberation. More often, the result is wasted time resulting from each meeting participant feeling obligated to speak.
Chief Justice Charles Evans Hughes, addressing President Franklin Roosevelt’s proposal to expand the Court in 1937, commented:
More judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned.
The credibility of split decisions will be compromised. The size of the Supreme Court has been set at nine since 1869. Decisions of an expanded court decided by votes of 7–6 could be seen as having limited precedential value if viewed as reflecting current politics instead of a disciplined application of the law to fact patterns. Because the court largely operates on the basis of its precedents, the temptation to overrule precedents will become greater.
The precedent of expanding the court to change its ideological mix is a dangerous one. Suppose the Court expansion is enacted and Republicans again assume control of the White House, House, and Senate in a few years. Why wouldn’t they expand the court to 15 or 17 justices to reverse “the wrong” of the Democrats’ previous court-packing? A vicious circle of ever-increasing expansion of the Court could be ignited.
Thomas Jippling and GianCarlo Canaparo, writing for the conservative Heritage Foundation, comment:
With the Court’s independence gone, it would take on an even larger role in deciding fraught political questions than it does now. The temptation for a successive President whose party enjoys majority control in the House and Senate to pack the court further would likely be irresistible.
Alarm regarding the impact of an expansion of the Court is being raised in many sectors. Democratic Senators Krysten Sinema (AZ), Bernie Sanders (VT), and John Hickenlooper (CO) have been described as opposed. If brought to a Senate vote, there are likely to be other “no” votes.
President Biden has also indicated ambivalence to the proposal. He is described as “not a fan.”
Typical of concerns being raised is the view of University of Chicago Law School Professor M. Todd Henderson:
The Democrats’ intent is to pack the Court for political reasons, plain and simple. This would be unprecedented in our history. And, the intent to destroy the third branch — the one that ensures the other two comply with the Constitution — is sufficient to find it illegal.
I’m not sure that Henderson’s conclusion would hold up, especially if it were considered by a Supreme Court “already packed.”
Commission to issue a report in 180 days
President Biden has announced the appointment of a Commission to study the Supreme Court. The Commission’s work will address most current issues regarding the composition, operation, and function:
The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.
The appointees to the commission, a diverse group of legal scholars, will be named in the Executive Order creating it.
President Biden’s commission is likely to frame the debate on several reforms. Some reforms are likely to be recommended and could be considered by Congress before the 2022 elections. These include establishing an age limit for service on the Court, a reform that could contribute to depoliticizing the Court, by setting an exit date for elderly justices.
Risk to progressives and Democrats
While the frustration of progressives with the Court's current ideological composition is understandable, success at expanding the Court could prove problematic for those promoting it. Those responsible for transforming the Supreme Court into a more politically responsive institution could be blamed for its future dysfunction if fears n prove accurate. Similarly, “what goes around comes around.” Any benefits from reforms enacted in 2021 could be reversed in 2025.