Today’s entry: On the surface, court-packing doesn’t make sense, right? Because the next Republicans in power could just add more conservative justices. So, the only way this works is if you know the other party won’t get power again.
Bottom Line: The court-packing conversation has taken on a life of its own as a key election issue. This wasn’t even a regular part of the conversation prior to the Supreme Court vacancy, let alone a key issue. Additionally, Joe Biden’s refusal to provide answers to the questions posed about “packing the courts” has further fanned the flames of this issue. Perhaps, the Biden campaign thinks having this as an issue will help drive turnout on the left. On Friday, he was asked this question by a reporter in Las Vegas, "Don’t voters deserve to know, whether you'd pack the courts?" Biden’s answer, “no they don’t”. So, while Joe Biden doesn’t think you deserve to know whether he intends to “pack” the courts given an opportunity to do so, let’s start by looking at the history of changes in Supreme Court size.
The United States Supreme Court has experienced changes. Historically, the first Supreme Court had six Justices and the court has had as few as five Justices and as many as ten. Nine Justices have been the settled number since 1869.
All of the changes in the size of the Supreme Court occurred within the first eighty years of our country’s history. To understand what could happen under a Biden administration, it’s important to understand how changes in court sizes could occur. The separation of powers is addressed in Articles 1 through 3 in the United States Constitution. What’s not specified within the establishment of the courts is size. As a result, the size of the Supreme Court and related federal courts was and is determined by law. That’s where this conversation picks up.
Senate minority leader Chuck Schumer has already stated “all options are on the table” if Democrats win back the Senate. Included in that statement is the end of the legislative filibuster. Should Joe Biden be elected president and Democrats win control of the Senate in addition to retaining control of the House, it’s now widely believed they’ll end the legislative filibuster in the Senate allowing a simple majority to pass legislation, as is the case in the House. Under this scenario, they could alter the size of federal courts up to and including the Supreme Court. You’ll frequently hear a number up to 15 justices mentioned, in part because that’s the number FDR attempted to obtain during his presidency. That’s the last time legislation aimed at expanding the courts was attempted. FDR’s plan to “pack” the Supreme Court failed by a 70-20 vote in the Senate.
To your question, yes, it’s true that it would be possible for Republicans to turn around and reverse the changes Democrats might pass, but many of the changes instituted wouldn’t be. Aside from the possibility to turn the Judicial branch into an activist wing of government over the short run, cases heard and ruled on by the Supreme Court set a precedent that applies to the entire legal system. Once the precedent is set by the Supreme Court, it’s often permanent, or as close to permanent as there is within our representative republic. The only way to overturn Supreme Court prescient is to have another ruling on a related issue by the Supreme Court. That’s extremely difficult to achieve, just look at Roe V. Wade for example. Yeah, there’s no such thing as un-popping that cork if this were to happen.
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