One can almost feel sorry for the attempts of Joe Biden and Kamala Harris to avoid answering a very simple, straightforward question. At last week’s vice presidential debate, Mike Pence asked Harris whether the Democrats would try to pack—add more seats to—the Supreme Court should they win the interviews. And no wonder—should they say “yes,” they will satisfy the most liberal Democrats but horrify more moderate Democrats, independents, and Republicans. Should they say “no,” they may win more moderate support yet antagonize the Democrats’ most liberal activists and members of Congress, who are behind the court packing proposal. Either way, Biden and Harris risk losing necessary supporters. Well-played, Mike. Well-played. But while we wait for Joe to enlighten us—he’s told us he won’t do so until after the election–we can attempt to take an honest look at efforts through the ages to increase or decrease the size of the Supreme Court, and to assess the possible outcomes of court packing by Democrats should they sweep next month’s elections.
The Constitution created both the Supreme Court and the office of Chief Justice. But it gave to Congress the power to determine the Supreme Court’s size. A National Geographic article shows how Congress initially established a 6-member Supreme Court, reduced its membership to 5, then expanded its membership to 7 and then up to 9, then 10, then back to 7, and finally up to 9 again. This fascinating article can be found here: https://www.nationalgeographic.com/history/2020/09/why-us-supreme-court-nine-justices/#close.
One of the purposes behind each change was to accommodate whichever party controlled the Congress when the change was made. One belief shared by all our past and both our present political parties is the need to control the composition of the Supreme Court to affect the content of its decisions. Expanding the Supreme Court would provide more opportunities to place on it justices friendly to the agenda of the party controlling Congress, assuming the appointing president was of the same party. But if an incoming president was thought to be hostile to the party dominating Congress, the party could eliminate seats made vacant by justices’ deaths, retirements, or resignations.
For example, by 1861 the Congress had increased the Supreme Court’s size to 9, most of whose members were Democrats. But with the Republicans having won both the White House and the Congress in the 1860 elections, the Congress added a 10th seat to help Lincoln make the Court more Republican. Following Lincoln’s death, the Republican Congress, fearing appointments by southern conservative Democratic President Andrew Johnson, who opposed Republican reconstruction policies, reduced his appointment power by eliminating 3 Supreme Court seats. Once Johnson was replaced by Republican President Grant, the Republican Congress restored 2 seats for Grant to fill, presumably with more Republicans.
The most dramatic example of attempted court packing to date is President Franklin D. Roosevelt’s 1937 proposal to add up to 6 new seats to the Supreme Court. The proposal reflected FDR’s frustration over both his lack of opportunity to appoint Supreme Court Justices during his first presidential term, and the Supreme Court’s rulings that several major New Deal programs were unconstitutional. Court packing would allow Roosevelt to appoint more friendly justices and thereby make an end run around the “nine old men” blocking the New Deal.
Roosevelt’s plan was perfectly legal and he was well within his rights as President to propose it, but it elicited widespread bipartisan opposition from those who feared for the Supreme Court’s independence. The U. S. Senate, with 76 Democrats at the time, rejected the plan by a vote of 70 to 20.
Ironically, though Biden remains silent on the issue of court packing today, he is also on record for making critical remarks on FDR’s failed plan. Accurately describing the asserting the legality of FDR’s plan, he nonetheless called it “boneheaded,” given its threat to judicial independence. Of course, the Supreme Court can never be totally independent of the other branches of the government or of the parties that control those branches. Democrats are already charging that the Republicans are gaining way too much power over the Supreme Court now. But it can certainly be argued that a sudden increase in the Court’s membership, followed by its staffing by members of the dominant party, would reduce its (partial) independence even further. Biden’s televised remarks can be viewed here: https://www.bing.com/videos/search?q=joe+biden+court+packing+1983&docid=608002086202180841&mid=E67E77DABB58BB42C765E67E77DABB58BB42C765&view=detail&FORM=VIRE.
Today’s most liberal Democrats are less concerned with judicial independence than with the advancement of their own policy goals. Should they be able to pack the Supreme Court by expanding its size and filling the new seats with men and women supportive of their policy agenda, we can look forward to rulings affirming abortion rights as well as supporting the Democratic program of higher taxes on the “rich” to pay for more federal spending on climate change, health care, and student debt forgiveness. The suitability of these programs is in the eye of the beholder, even if the right of the Democrats to advance their programs by any legal means possible is well established.
But supporters of court packing should realize that the Democrats are not the only ones to use it. Whenever the Republicans control the White House and the Congress, they will always have the power to reduce the size of the Supreme Court back to 9 seats. Or they may use their power to expand the Supreme Court to be packed with enough Republicans to help replace Democratic policies with Republican polices. After all, the GOP has followed both courses of action in the past.
So do Democrats really want to pack the Supreme Court? And if they do, how will the GOP respond? As Joe Biden says, we’ll have to wait and see.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.