With the likely imminent confirmation of Amy Coney Barrett, the Republicans will succeed in entrenching a solid 6-3 conservative majority on the Supreme Court for many years to come. Already, questions have arisen as to how Democrats should respond. There has been much discussion of blunting the impact of this ideological coup through the expedient of court-packing.
The term “court packing” itself evokes President Franklin Delano Roosevelt’s controversial proposal to appoint up to six additional justices to the Supreme Court—one for every justice older than 70— after he was decisively reelected for a second term in 1936. The president himself didn’t use the term. He called his measure the “Judicial Procedures Reform Bill” and argued that it was necessitated by the actions of the Supreme Court, whose rulings had already eviscerated many important New Deal programs, thereby jeopardizing economic recovery.
Even historians sympathetic to FDR have largely classified his bold 1937 proposal to reconfigure the court as a maladroit political failure. But they’re peddling a myth. While FDR ultimately failed in his bid to increase the number of Supreme Court justices, it is not coincidental that soon after the president broached it, the justices themselves began to shift their views on subsequent New Deal welfare and regulatory legislation, notably Social Security, the pro-labor National Labor Relations Act, minimum wage legislation, and other progressive forms of economic regulation.
Despite FDR’s ultimate legislative successes, “court packing” remains an emotive term suggesting something underhanded or even illegal, akin to stacking a deck of cards. Yet there is nothing in the Constitution that specifies the number of justices or justifies treating the current complement of nine as sacrosanct as the Holy Trinity. Still, the GOP thinks they are on to a winning issue, and Democrats remain defensive about the concept. They needn’t be—if the message is framed as a broader issue of court reform and social justice, as well as one that is consonant with historic precedent.
According to the historian Jean Edward Smith, “the method most frequently employed to bring the court to heel has been increasing or decreasing its membership.” It is also perfectly legal, given that the “size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.”
During the first hundred years or so of the Republic, Congress showed little inhibition using that power: As Smith notes, the original Judiciary Act of 1789 set the number of justices at six. That number was reduced to five in 1800, a change subsequently repealed by the incoming Jefferson government. Then, in 1807, Congress increased the number of justices to seven, then to nine in 1837 under the administration of Andrew Jackson. During the Civil War, it was increased to 10, only to be reduced to seven again when Andrew Johnson succeeded the assassinated Abraham Lincoln, before Ulysses Grant restored the number of justices to nine in 1868.
“The switch in time that saved nine” refers to the court’s sudden jurisprudential shift in 1937, notably that of Justice Owen Roberts, after FDR’s proposal to stack the court with judges more likely to be favorably predisposed to his New Deal legislation. Justice Roberts himself subsequently denied that Roosevelt’s threat had any impact on the evolution of his own legal thinking. That’s understandable: No justice would ever want to concede capitulating to the whims of mere public opinion or political pressure.
Yet, for all the talk about its alleged independence and neutrality, the Supreme Court has been anything but neutral throughout its history. It has often stepped beyond mere legal or statutory interpretation and devised novel theories that constitute de facto legislative acts. Ironically, both liberals and conservatives have often agreed on this point, even regarding the emotive issue of abortion. However, whereas there are checks and balances on the other two branches of the US government, there is no corresponding attempt to curb the power of the judiciary, which, in the words of Michael Lind, “is now a legislature—a legislature that is vastly more powerful than the U.S. Congress and far less democratic.” That explains why conservatives are now working aggressively to secure ideological majorities in the courts, to undermine long-standing abortion rights, hard-won voting rights, and various health care protections.
The independence of the US judicial system itself is undermined by the fact that in 38 of the 50 states, state court judges are elected, not appointed. This is germane because the lower circuit courts constitute the “farm system” for elevation to the Supreme Court. The problem is that these elections, and the corresponding flood of money that accompanies them, represent “the single greatest threat to judicial independence,” in the words of the late Justice Sandra Day O’Connor.
What Justice O’Connor failed to recognize is that even when she made these remarks, judicial independence was more apparent than real. It beggars belief that simply because an elected judge is suddenly elevated to the highest court in the land, he/she will suddenly abandon the ideological predispositions (or ignore the sizable historic campaign contributions) that got him/her there in the first place. Chief Justice John Roberts may indeed profess that he is simply a neutral umpire calling balls and strikes, but his conception of the “strike zone” is conveniently tailored to a specific jurisprudential tradition that is profoundly conservative and pro-corporation.
The deeper problem with the Supreme Court, therefore, is less with the number of justices or even their political makeup and more with the way this myth of independence effectively legitimizes the court’s persistent efforts to nullify decisions taken by elected legislatures and the executive. This is not a recent problem. As early as 1937, the journalist I.F. Stone observed that “the power of the Supreme Court has become so great, the views that dominate it so backward, as to jeopardize the security of our society by blocking adjustment to changing conditions.”
Which would, at a minimum, suggest using the expedient of increasing the size of the Supreme Court to mitigate this profoundly illiberal power that the judiciary has arrogated to itself. In theory, term or age limits could achieve the same end, but Congress cannot retroactively impose such limits on existing justices (many of whom are still relatively young). Court packing still represents the most effective means of dealing with the existing problem.
Biden and the Democrats should not be intimidated by specious GOP arguments. FDR may have lost his battle to increase the Supreme Court’s numbers, but he still managed to win the war: The country recovered from the worst economic crisis in its history, vital pro-labor legislation was enacted by Congress and sustained by the Supreme Court, and today, New Deal reforms such as Social Security are about the closest thing there is to an untouchable third rail in American politics. Elections do have consequences, and Democrats need to make the case that the 2020 results should not be nullified by unelected justices, who will remain in office until they voluntarily resign or die. The party should be aggressively making the case for reform now that takes away some of the power courts have arrogated to themselves and gives it back to the people’s elected representatives. Court packing—whether called by that name or any other—is simply a means to that laudable end.