By Ben Donson, Contributor and Political Economy undergraduate at King’s College London
On 9th April 2021, President Joe Biden signed an Executive Order to form a Presidential Commission on the Supreme Court of the United States which will examine the debates surrounding reform of the Supreme Court, including looking at the membership and size of the Court. This has created particular controversy, but what are the implications of court packing and why has it been proposed?
The Supreme Court is established in Article III of the Constitution, but it is not specified how many justices should serve on the Court. Instead, this decision is left to Congress. The Judiciary Act of 1789, signed into law by President George Washington, stated that the Supreme Court would be composed of six justices. Since this act was passed, the number of Supreme Court justices has varied between as many as ten under President Abraham Lincoln and as few as five under President John Adams, until the Judiciary Act of 1869 which set the number of justices to nine and has been unaltered since. The number of Supreme Court justices fluctuated as Congress sought to achieve partisan political goals. For example, Congress wanted to limit the power of President Andrew Johnson so passed the Judicial Circuits Act of 1866 which reduced the number of justices from ten to seven.
Supreme Court Justices are nominated by the President and confirmed by the Senate with the process having become increasingly controversial and politicised, with the make-up of the Court having long lasting effects on US politics. This is because justices have life tenure on the Court and have the power of Judicial Review, granted by the Court itself in the case Marbury v. Madison in 1803, giving it the ability to strike down acts of Congress and the Executive if the acts are deemed unconstitutional. Justices are non-partisan but still have ideological beliefs which influence their interpretation of the Constitution and which ultimately influence their rulings. President Donald Trump nominated three justices to the Supreme Court during his presidency (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) giving the Court a 6-3 conservative majority, making the Supreme Court the most conservative it has been in 70 years. With justices having life tenure and having the final ruling on the biggest constitutional issues, a conservative majority in the Court would affect the its interpretation of the Constitution and could lead to more conservative rulings which will be at odds with the beliefs of progressive Democrats.
The idea of court packing is to add more justices to the Supreme Court in order to achieve political goals. The last time a plan was proposed to increase the number of justices was in 1937 with President Franklin Roosevelt’s Judicial Procedures Reform Bill which proposed to give the president power to appoint an additional justice, up to a maximum of six, for every sitting justice over the age of seventy. Roosevelt wanted more justices on the Supreme Court in order to gain favourable rulings for his New Deal legislation, where during his first term four conservative justices, nicknamed the Four Horsemen, struck down many of his New Deal measures. Roosevelt’s court packing proposal was met with opposition and was ultimately never voted on in Congress. It was proposed in order to achieve political goals and the same can be argued for the Democrat’s current court packing proposal.
On 15th April 2021, Congressional Democrats unveiled a proposal to increase the number of justices on the Supreme Court from the current nine to thirteen. If this proposal passes Congress, it would give Biden the ability to nominate four justices to the Court, changing the balance of the Court to a 7-6 liberal majority which would affect the rulings the Court makes. This would be beneficial for the Democrats and their progressive agenda as they currently control both the Executive and Congress, and also controlling the Supreme Court would be a viable way to advance their progressive agenda where it would be less likely for acts by the Executive or Congress to be struck down.
Increasing the number of justices to alter the balance of the Supreme Court and create a liberal majority is purely political. It will lead to further politicisation of the Supreme Court and break up the separation of powers between the three branches of government, undermining the Court’s independence. In Federalist 78, Alexander Hamilton argues that the judiciary has “neither FORCE nor WILL, but merely judgement” and it is this non-partisan judgement of the judiciary which ensures its independence in its rulings. Hamilton goes on to argue that “liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments”. Court packing for political goals politicises the Supreme Court by putting it in union with the other branches of government which are partisan. This ultimately undermines liberty because the principle of judicial independence would be sabotaged as there will be political influence in the rulings by the Court. The Supreme Court should act as both a check and balance against Congress and the Executive in the system of separation of powers, offering a non-partisan and impartial interpretation of legislation passed by the other two branches of government without any of their interference.
Back in 1983, Biden said the idea to pack the Supreme Court was a “bonehead idea”, and in 2005 stated Roosevelt’s court packing proposal was a “power grab”, so creating the Presidential Commission on the Supreme Court could be him appealing to the progressive wing of the Democratic party. The court packing proposal of Democratic Congressmen back in April could be seen as political ‘tit for tat,’ with Democratic Representative Jerrold Nadler, co-sponsor to the bill, stating the proposal would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition”. This makes reference to the controversy caused by Republicans in 2016 when Justice Antonin Scalia died and President Barack Obama nominated Merrick Garland to fill the new vacancy. Only hours after Scalia’s death, Senate Majority Leader Mitch McConnell stated that the next Supreme Court justice would be nominated by the next president – which was to be determined in the election later that year where Trump won and successfully nominated Neil Gorsuch to the Court. The controversy continued when Justice Ruth Bader Ginsburg died in 2020 and McConnell stated that President Trump would receive a Senate vote on his nomination of Amy Coney Barrett to the Court, despite the 2020 election only being months away. It showed the hypocrisy of McConnell and his differing stance compared to the similar situation in 2016, so the Democrat’s proposal is likely in retaliation to this. Yet despite the proposal receiving lots of media attention and public discussion, it is unlikely to pass Congress. House Speaker Nancy Pelosi has stated she has “no plans to bring it to the floor” and, with sixty votes needed for cloture in the Senate, at least ten Republicans will need to vote in favour of the proposal alongside all Democratic Senators which is highly unlikely.
Using the same language as Biden did in 2005, the proposals to increase the number of justices in the Supreme Court looks like a power grab by the Democrats who already control both Congress and the Executive and are responding to the Court’s conservative majority by simply increasing the number of justices to artificially create a liberal majority in order to advance their progressive agenda. The Supreme Court is not something which should be politicised, regardless of what Republicans have previously done, and its independence should be paramount. While it can be argued that Supreme Court reform is needed, court packing is not the answer as it is simply changing something you don’t like which will inhibit the Court’s independence along with affecting the system of checks and balances and the separation of powers upon which the US political system is built. If this proposal is passed, will we witness history repeating itself, going back to pre-1869 where the number of Supreme Court justices changes as and when Congress wants to advance its political agenda of the time?
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