Why is changing the size of the Supreme Court considered dangerous today, when it has been done in the past?

Question

Recently, there has been a lot of talk about "court packing", the process of increasing the size of the Supreme Court, thereby creating openings to be filled with new justices. A common argument is that such a plan would destroy the stability, independence, and credibility of the Court and would lead to constant tit-for-tat packing each time control of Congress changed.

However, the size of the Supreme Court has changed multiple times throughout the 19th Century: from 6 in 1789, to 7 in 1807, to 9 in 1837, to 10 in 1863, then down to 7 in 1866 (via attrition, so it never dropped below 8), before returning to 9 in 1869. None of these changes seem to have damaged the Court and they didn't lead to the political chaos that so many people fear.

So, what is (or is not) different about today that makes a change in the size of the Supreme Court so dangerous (or not)?

Answer 1

The reason for the first three increases in the size of the Supreme Court was related to the size of the country's boundaries growing.

The decrease in 1866 was, reportedly, more an attempt by the Supreme Court to convince Congress to raise the salaries of the justices. When that failed, the number of justices returned to nearly where it was before.

In neither of those years did the country have the same level of partisanship as we do today. Any expansion of the Supreme Court would be seen as being for political reasons, despite the fact that the judicial branch is meant to be apolitical.

Answer 2

I'm assuming this is most likely because of the time where something like this almost happened, namely the Judicial Procedures Reform Bill of 1937. The idea, as Wikipedia puts it, was the following:

The Judicial Procedures Reform Bill of 19371 (frequently called the "court-packing plan")[2] was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional.

FDR's goal here seemed to be to go around the court here to do what he wanted, even though it had already ruled against him.

The fear of court packing is that if everyone did this, the court would no longer make decisions based judicial precedent or the rule of law. Instead, it would just become a political tool of the party in power at the time--which is an undesirable quality.

Answer 3

There's a lot of moving parts here to understand

Roe v Wade changed the politics of the court

No matter which side of the aisle you're on Roe v. Wade still looms large in any SCOTUS appointment. Ginsburg's death reiterates that

If Trump is able to install his nominee in that seat, both sides agree there’s a better chance than ever that Roe v. Wade — the 1973 decision established a nationwide right to abortion — could be overturned or gutted.

If there is any court packing to be done, this issue will be front and center, despite the fact that few other politics actually revolve around abortion. Every SCOTUS nominee has faced a Roe related question since Ted Kennedy's Senate speech in 1987 denouncing Robert Bork (who was not confirmed)

Robert Bork's America is a land in which women would be forced into back-alley abortions

This includes all subsequent nominations, except Anthony Kennedy (Kennedy was nominated when Bork withdrew, and was more centrist)

• David Souter (1990)
• Clarence Thomas (1991)
• Ruth Bader Ginsburg (1993)
• Stephen Breyer (1994)
• John Roberts (2005)
• Samuel Alito (2006)
• Sonia Sotomayor (2009)
• Elena Kagan (2010)
• Neil Gorsuch (2017)
• Brett Kavanaugh (2018)

Federal Court appointments have become far more political in general

• Democrats filibustered 10 appellate nominees made by George W Bush. In 2005, with a possible removal of the filibuster for judicial appointments (the Nuclear Option), the Gang of Fourteen got some approvals through and removed the threat
• In 2013, with a desire to fill the three DC Circuit vacancies, Democrats invoked the Nuclear Option on all confirmations save SCOTUS
• In 2017, Republicans invoked the Nuclear Option on SCOTUS confirmations to appoint Gorsuch (after blocking Obama's nomination of Merrick Garland) and later Kavanaugh

It would be Democrats engaged in open court packing

That has always been the rationale, which gained momentum after the partisan Kavanaugh nomination

A right wing court is likely to crush most legislative attempts to steer America down a more progressive and restorative path. Forget single payer health care, transgender rights, criminal justice reform and of course, upholding Roe v. Wade — Kavanaugh and his fellow conservative justices will have the power to shoot those dreams down, no matter what the wider voting public thinks about them.

This forecast might sound like the end of the world to Americans who oppose the Kavanaugh nomination, but in fact, there’s a pretty simple fix that hasn’t yet been seriously discussed in mainstream political forums.

That solution is court packing: that rarest of moments when the president and Congress decide to add seats to the Supreme Court.

In order to pass a law expanding SCOTUS, the Democrats will have to invoke the Nuclear Option one final time against the Legislative process (despite controlling both chambers in 2017, Republicans were loathe to go that far).

Once the filibuster is gone for legislation, Democrats are free to expand the court as they see fit. Since confirmation filibusters are already gone, it would then be a mere formality to nominate new judges of any particular bent and confirm them to SCOTUS. There would be no immediate remedy for Republicans, who would have to wait for a new election cycle. It's unclear how Republicans would handle things once they had a simple majority, but it's entirely possible that if the Democrats expanded SCOTUS by X seats, that they would simply add X seats of their own.

Answer 4

The Supreme Court is supposed to be an apolitical and impartial body. This perception currently hangs on the edge as the political divide and polarization in the country is reaching new heights every single week. It can be argued whether it figuratively takes another drop or another glass to shatter what is left of the perception of impartiality, but stacking the court would in this metaphor amount to open the floodgates.

The consequences are up to speculation, but can go anywhere from an almost certain political crisis to states flatout rejecting federal rulings and treating the Supreme Court as an illegitimate body. Considering the current political divide I wouldn't consider it particularly speculative to suggest that they will most likely be severe.

The main reason is, as mentioned by others, the current polarization. There are discussions in the comments that attempt to make comparisons between now and the 19th century with regard to polarization. I would argue that it is generally incomparable considering the instant spread and broad availability of information that we have today.

In a hypothetical scenario in which there was no political divide, changing the structure of the court would probably be much more uncontroversial or at least only attract technical critique, but that simply isn't the case currently.

Answer 5

Changing the size of the supreme court right now is only a discussion as a "well if you do that, I'll do this" tit-for-tat, so a lot of the focus is not on the idea of changing the size itself as being bad or good, but rather the ideas are being discussed in the news as though these are simple trivial chess manoeuvres. They are not, lots of noise out there.