28

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)?

42

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.

| improve this answer | |
  • 47
    Reconstruction didn't have partisanship? Read up on the Impeachment of Andrew Johnson... – dandavis Sep 22 at 20:42
  • 15
    So, the first 3 were not seen as partisan actions because they were tied to the creation of new circuit courts. I think you're minimizing the 1866 change: the law directly nullified one of Johnson's nominations and blocked another one later in his term. Maybe the true purpose was court salaries, but the effect was a huge attack on Johnson's power. Was that really not seen as partisan, particularly in the hyper-partisan period of the Civil War and Reconstruction? – divibisan Sep 22 at 20:44
  • 12
    "the judicial branch is meant to be apolitical" - is that really the case though? The constitution allows judges to be selected by politicians, judges have party affiliation, and tend to make decisions along party lines (contrast other democracies where none of those things are permitted). Expanding the Supreme court for political reasons seems reasonably consistent to me, and if anything an argument can be made that it de-politicises the selection process if it prevents a party from biasing the court for years/decades at a time. – JBentley Sep 23 at 7:54
  • 8
    @JBentley How can you say there are places where judges cannot make decisions on party lines? How would you enforce that? – Greg Schmit Sep 23 at 14:10
  • 7
    @JBentley you claimed that in other countries, judges tending voting along party lines is not permitted. I was just curious how they could possibly do that. – Greg Schmit Sep 23 at 15:59
22

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.

| improve this answer | |
  • 25
    The amusing part of the FDR story is that, not long after FDR unveiled his court-packing plan, the court (Justice Roberts in particular) seemed to undergo a sudden shift in jurisprudence, and started ruling in favor of his New Deal measures. Roberts, as I recall, maintained that this was a non-political move, wasn't really a shift, etc. But many historical accounts have considered it a calculated move to defeat the court packing scheme, or anything else to alter/undercut the court, giving it names like "the switch in time that saved nine". – zibadawa timmy Sep 23 at 5:24
  • 7
    SCOTUS "would just become a political tool of the party in power at the time--which is an undesirable quality" - as contrasted with today, where SCOTUS is immune to party politics. . – BobE Sep 23 at 20:47
  • 3
    The other amusing part of the FDR story is that after the averted showdown with Congress and the Supreme Court, FDR ended up appointing 8 of the 9 positions on the Supreme Court before his death, undoubtedly influencing judicial rulings for decades to come. I personally find it fascinating that this wasn't more widely discussed throughout various reports and analyses regarding Trumps' other nominees influencing the makeup of the court. – mrlitsta Sep 23 at 23:22
  • 1
    The other other amusing part is that the conventional account may very well be wrong, because there’s a strong chance that the court already made its decision in the case before FDR announced the bill, but released its decision after FDR made his announcement. – Harry Huang Sep 24 at 17:58
13

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)

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.

| improve this answer | |
  • 3
    "RvW changed the politics of the court". I'd be interested in a source for that. The "politics of the court" (a judicial body that ideally should be politics-free) was changed from what to what? Alternatively, do you mean to say that political disappointment over RvW has influenced the nominations for justices? – BobE Sep 23 at 21:05
  • Yeah, I'd also be really interested in hearing a bit more detail on the first and second points. Clearly Reconstruction was at least as partisan and polarized as today, but perhaps the Supreme Court was not as politicized. Could you expand on how Roe v. Wade fundamentally changed the Court? – divibisan Sep 23 at 22:15
  • I went through every confirmed justice and linked where they were at least asked on the record about their views on abortion and/or Roe. Only Kennedy avoided any such question post-Bork. – Machavity Sep 23 at 22:45
  • 5
    "Democrats filibustered 10 appellate nominees", you give three examples of perceived politicism from Democrats yet ignore the historic number of filibustered nominees by Rebulicans under Obama. "By our count, cloture was filed on 36 judicial nominations during the first five years of Obama's presidency, the same total as the previous 40 years combined". "In 2013 ... Democrats invoked the Nuclear Option" - yes, due Rrepublicans politicizing the process. – Quantic Sep 24 at 16:42
  • 4
    @MaxW I strongly suspect that after the partisanship works itself out, there might be a Constitutional amendment in the future fixing the size of the court so it's not a political football anymore – Machavity Sep 24 at 18:16
9

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 figuretively 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.

| improve this answer | |
  • 5
    "instant spread and broad availability of information" plus the social media bubble effect which acts as a multiplier for these issues. – Jontia Sep 23 at 8:44
-2

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.

| improve this answer | |
  • 4
    I've downvoted because this doesn't answer the question: why is changing the size considered dangerous today when it has been done in the past? – JBentley Sep 23 at 7:59
  • 3
    Honestly I think this is the right answer. The functional, historical or legal reasons are irrelevant, the only thing that matters in the hyper-partisan state of current US governance is "For me or Against Me". The issue is the same as Statehood for DC, it doesn't matter what the arguments are it only appears to matter how the new state would vote. Retaliation for adding justices to the court is certain the next time control of government changes. Tit-for-tat retaliation is dangerous and the end result cannot be predicted. – Jontia Sep 23 at 8:20
  • 1
    @Jontia It's not a problem for an answer to propose that the historical context is irrelevant, as you suggest. However this answer does not do that. Hence it doesn't address the question posed, which is specifically asking why now, if not then? To be a proper answer it should state that the past actions are irrelevant and then explain why they are irrelevant. – JBentley Sep 23 at 10:09
  • 3
    While cute, the Crest analogy is really not helpful. There aren't 10 specific doctors, it means "90% of all doctors polled". And Supreme Court Justices aren't selected randomly like survey participants, they're chosen through a political process. – Barmar Sep 23 at 13:41
  • 1
    A better analogy might be "4 out of 5 dentists recommend sugarless gum". The other 20% are probably being paid off by the sugar lobby. – Barmar Sep 23 at 13:43

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .