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It has been anticipated that there may need to be a replacement justice during the late part of president Trump's term, as there was during Obama's. The Democratic president Obama nominated a replacement justice (Merrick Garland) and was knocked back by the Republican controlled Senate with the justification that it was an election year.

The Republican president Trump may nominate a replacement justice, and if he does so it is with a Republican controlled Senate. There is suspicion that the same justification that prevented appointment under Obama may not be applied. Presumably, this means that if they move fast enough, the Republicans could appoint another Supreme Court justice.

Given given the previous knockback of Obama's nominee, Democrats could reasonably claim a Republican late-presidential-term United States Supreme Court Justice appointment would be a hypocritical move, and try to prevent it or counteract it. The Republicans control the presidency and the Senate, the two participants in appointing a Supreme Court Justice, so the Democrats have no procedural method to prevent an appointment.

The number of Supreme Court justices is not constitutionally limited, merely by legislation. Altering this legislation is possible with the approval of both the houses of congress.

Polling is indicating that there is a reasonable chance that the Democrats will take control of the Senate in the coming US election, and a better chance of controlling the lower house. Even if the Democrats both houses and the presidency they will not be able to reverse an earlier Republican appointment.

Have Democratic representatives indicated that a late-presidential-term United States Supreme Court Justice appointment will be subsequently neutralized by stacking the court with, for example, another four justices? Or forty?

  • "It has been anticipated that there may need to be": Are you not aware that Ruth Bader Ginsburg's death was announced a couple of hours ago? – phoog Sep 19 at 1:07
  • I assume you're asking specifically for published statements from Democratic politicians and party leaders? – divibisan Sep 19 at 1:17
  • She's been ill for a while and her death has been anticipated. Discussions would have been had and pronouncements made. What have politicians said they're going to do? – Josh Sep 19 at 1:17
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    That would not be called neutralization, any more than adding 2 liters of acid to 1 liter of base neutralizes the solution. Adding one judge would potentially be considered as such. – Obie 2.0 Sep 19 at 2:48
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    @CountIblis - I would beware of confusing support for a goal with support for a strategy. It's the reason why, for instance, polls find that a large majority of the country supports police reform, but only a large minority supports defunding the police. That the majority of the population supports a court that is slightly more to the left does not mean they would support a court packing strategem. In fact, if they prefer a slightly more liberal court, they might even perceive it as likely to result in a court that is too liberal for their tastes. – Obie 2.0 Sep 20 at 16:06
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Packing the Court would be a pretty radical step, and so Democrats who are actually in government have been pretty hesitant to talk about it in any specifics, particularly as it is still just a hypothetical.

The issue did come up during the primary campaign, so there are statements about it from all the major candidates. Axios has an article summarizing them:

Biden opposed it:

Former Vice President Joe Biden: "No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day."

While Harris said she wouldn't rule it out:

Sen. Kamala Harris (D-Calif.) said: "We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head on, and everything is on the table to do that," per Politico. She said she is open to the idea of court packing.

A number of other candidates said they were open to it, but with the exception of Buttigieg, no one said they'd actually support expanding the court. In pretty much every statement I could find, the attitude was, basically, "let's hope it doesn't come to that."

There closest I could find to a statement on this exact issue came from Senator Kaine of VA, who warned back in August that a late 2020 confirmation would create unavoidable pressure:

[Tim] Kaine [D-VA], the party's last vice presidential nominee and a lawmaker with a reputation as an institutionalist, said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.

"If they show that they're unwilling to respect precedent, rules and history, then they can't feign surprise when others talk about using a statutory option that we have that's fully constitutional in our availability," he said. "I don't want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that."

It seems Senator Ed Markey (D-MA) would support expanding the court if McConnell confirms a replacement:

Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.

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    Biden has some good sense. Even Trump and the Republican Party did not expand the size of the court, when they had the chance and it would clearly have been to their benefit, which is striking considering how many other institutional norms they have violated. If Biden sets that precedent, he can certainly expect any future party, even if headed by someone far less radical than Trump, to be completely unrestrained. – Obie 2.0 Sep 19 at 2:05
  • @Obie2.0 To be fair, they had a fairly strong majority already, so there really wasn't much need. If the court had handed Trump some significant defeats, you'd have heard a lot more about this from the right. The question the Democrats need to ask them selves is how much this norm is really constraining the GOP. Personally, I have a very hard time imagining that the lack of a modern precedent for court packing would stop McConnell if he thought it would be to his benefit. Let's all just hope that it doesn't come to this. – divibisan Sep 19 at 2:14
  • It clearly has, because it would absolutely have helped him to have more justices on the court, and the situation is what it is because "McConnell" is not the name of the party. To most people, it can understandably seem like Republicans have no scruples, but they actually have very few scruples. Just as Susan Collins balked at the idea of confirming a justice in October, it is clear that McConnell felt that his party and voters would not back him in such an attempt. – Obie 2.0 Sep 19 at 2:16
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    The question Democrats really need to ask themselves, in my opinion, is if they would really support setting the foundations for the destruction of the judicial power just to mitigate Trump's actions in precisely the same direction. If they win the Senate, they should investigate and if necessary impeach Kavanaugh, the only one of Trump's nominees to have any allegations of misconduct against him. If they really think their nomination is illegitimate, they could impeach Trump's new nominee. But their court packing would be seen as a self-interested move in the same vein as Trump's actions. – Obie 2.0 Sep 19 at 2:26
  • @Obie2.0 Ah, the edit makes more sense. We'll see what happens. I agree with you that this would be an incredibly dangerous move for them to make and I really, really hope that it never comes to that. If the institutionalists in the GOP can stand up to the radicals, then I don't think there's any risk. I really hope they can... – divibisan Sep 19 at 2:29

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