With control of the House for the first time since 2011, Democrats have proposed a number of legislative initiatives, including ways to reform the federal judiciary. Indeed, following the confirmation of Brett Kavanaugh, the health scares of Ruth Bader Ginsburg, and the frustration with the perceived ideological direction, there has been momentum to change the structure of the Supreme Court. One of the more disconcerting notions floated is the prospect of adding more seats to the Supreme Court in order to politically “balance it” the next time Democrats control both the White House and Congress. This is a tactic known as “court packing.”
No administration or legislative chamber since Franklin Roosevelt has earnestly tried court packing and for good reason. Much like stripping jurisdiction and abolishing judgeships, most Americans recognize this tactic for what it is, which is a direct attack on the independence of the Supreme Court. The judiciary serves as a check on government overreach and abuse. Without its independence, there would be very little to stop politicians from testing, and ultimately expanding, the scope of their power. It is no coincidence that court packing is employed by would be autocrats all over the world rather than by leaders of liberal democracies.
Nothing in the Constitution specifies the number of seats on the Supreme Court. At various times throughout the 1800s, administrations as well as lawmakers expanded and contracted the size of the Supreme Court for blatantly partisan purposes. The last serious challenge to its composition was made by President Roosevelt, who grew quite frustrated with the rejection by the Supreme Court of several aspects of his New Deal. His court packing proposal was soundly defeated by Congress in 1937. The Supreme Court decision to uphold a component of the New Deal in the midst of the debate helped to quash the idea. But these are noteworthy failures of our government system rather than examples to be followed.
The most potent argument for court packing is that the composition of the justices does not reflect the will of the country. Between the Electoral College, which has chosen two presidents that did not win the popular vote since 2000, and the impact that gerrymandered districts had in 2016, which created three times as many safe Republican seats as Democratic seats in battleground states, it is argued that the playing field is unfair. This imbalance is exacerbated by the luck of the draw. Since the first election of Richard Nixon, Supreme Court vacancies have arisen during Republican administrations at an abnormally frequent rate. The playing field would be leveled, the argument goes, by expanding the bench.
We disagree. Court packing is akin to drinking whiskey for frostbite. It does not address the core grievance of disenfranchisement and would instead accelerate the politicization of the Supreme Court. It would usher in a new and frightening era for the judicial arms race. If Congress under control of Democrats increased the number of seats, Republicans would eventually respond in kind. This back and forth would turn the Supreme Court into a partisan balloon, expanding and contracting in accordance with the strongest political winds, just as it did in the 1800s. Allowing for such dramatic change mocks the purpose of an independent judiciary.
The institution itself would suffer from ideological ping pong, in which the view of the Supreme Court could radically change over a short period of time. In a democracy that relies heavily on precedents set by the Supreme Court, such conflicting opinions would undermine stability and integrity in the judicial process. With such volatility occurring in the judiciary, the public would therefore attach little legitimacy to its decisions. If the public does not respect the courts, then why should citizens obey its rulings?
The Supreme Court, although often bruised by perceptions of political bias, consistently ranks above the elected branches of government in approval and trust. But that trust is not assured. Partisanship on the left and right has chipped away at the its legitimacy in the past. The ongoing perpetration of such acts, like court packing, could end up cratering it.
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