Packing the Supreme Court, or increasing the number of justices on its bench, has been rare in American history. Certainly the majority party has traditionally viewed it as risky: Change the size of the court now, only to have members of the opposing party do the same when they return to power. But it has also rarely been needed. The threat of court packing alone has sometimes been potent enough to elicit decisions from the court that align with the priorities of the political branches.
With the disclosure in recent days of the first few members on President Joe Biden’s commission to study judicial reform proposals, on whether the current administration will try anew to pack the Supreme Court. To answer that question on Monday, the Committee for Justice, a conservative advocacy group, hosted the latest in a string of panel discussions on court reform. The panelists, who hail from across the political spectrum, deemed the odds of court packing unlikely – at least in the short term.
“Court packing would be nearly, though not completely, novel,” said Professor Joshua Braver of the University of Wisconsin Law School. Braver highlighted two past instances in which Congress successfully changed the size of the court for political gain.
First, in 1801, outgoing President John Adams and Federalists in Congress reduced the number of seats on the Supreme Court from six to five, only to have incoming President Thomas Jefferson and a newly Anti-Federalist Congress add the seat back one year later. Second, after the Civil War, Congress expanded the number of justices to 10 in order to install a majority of Union-appointed justices, then reduced the number to seven in 1866 to prevent President Andrew Johnson (in Braver’s words, “a president without a party”) from filling a vacancy, before finally expanding the court again to its current nine-seat bench in 1869 after the election of President Ulysses S. Grant. Other changes to the court’s size during the 19th century coincided with the creation of new circuit courts (which necessitated adding new justices to “ride circuit”) and were not politically motivated, Braver said.
That history, the panelists said, should serve as a note of caution for Democrats who are pushing to expand the court now that they have control of the White House and both chambers of Congress.
Professor Ilya Somin of George Mason University’s Antonin Scalia School of Law distilled Democrats’ current position to an answer for one event: Republicans’ “hypocrisy” in their push to confirm Amy Coney Barrett during the run-up to the 2020 election after their refusal to consider Merrick Garland’s nomination during the previous presidential election. That move was the culmination of 30 years of “escalation” by “both parties,” Somin said. But he differentiated court packing from “engaging in skullduggery” surrounding nominations. Expanding the size of high courts, he said, has been a catalyst of democratic decline in other countries around the world.
That point found support from Thomas Jipping of the Heritage Foundation. “We can talk about what the norms have been” or “what steps have been taken” by Republicans, he said, but it’s “not a comparable response” for Democrats to restructure the Supreme Court. Whatever the reasons given for such a move, Jipping continued, “the purpose is the same … to destroy the independence of the judiciary” and place the courts under control of the elected branches.
Braver was skeptical. On the one hand, he voiced support for reforms other than court packing that would “curb, rather than colonize,” the Supreme Court and leave its legitimacy “bruised but not broken.” On the other hand, however, he doubted that any less controversial changes – from 18-year term limits (which Somin supported), to a code of ethics, to stripping the court of jurisdiction over certain issues – would be “much of a consolation” to progressives. Braver agreed with Somin that court packing would be an “escalation,” but he failed to see how it would depart from recent steps to inject politics into judicial nominations.
Posing the problem as one of “rising [political] temperatures,” the event’s moderator, Committee for Justice President Curt Levey, asked what might be done to lower the heat. Braver suggested that the court might “back down when coming up against progressive priorities,” a proposition Jipping mocked as nothing more than “letting [one side] win more.” In response, Braver pointed to past shifts by the Supreme Court in response to threats of reform: the creation of judicial review in Marbury v. Madison in 1803, the upholding of New Deal legislation in West Coast Hotel v. Parrish in 1937, the reinstatement of the death penalty in Gregg v. Georgia in 1976.
Somin raised a caveat. It’s one thing for the court to have backed down in the face of “overwhelming opposition” by the electoral super-majorities of 1803 or 1937, he said; it would be “quite another” today for it to kowtow on issues like abortion or the Second Amendment that closely divide the electorate.
As often occurs in these discussions, the final question returned to Biden’s commission. Noting that the others had shared their predictions for the commission — Jipping labeled the commission a “cloaking device” for court packing, while Somin felt it was “unlikely to recommend court packing” given the views of its orchestrator, Democratic adviser Bob Bauer – Levey asked Braver for his view. Braver inclined to Somin’s position, suggesting the other members that have been reported so far are, like Bauer, unlikely to support expanding the Supreme Court. That route is one on which progressives, a label to which he ascribes, are still “really conflicted,” Bauer concluded.