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“Out of Whack,” Indeed

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“Out of Whack,” Indeed

Packing the Supreme Court has a long and dubious pedigree. July 25, 2022
Politics and law

Last week, eight House Democrats held a press conference on the Capitol steps to call for adding four Supreme Court justices. The goal, of course, is to allow President Biden to overturn the Court’s nascent 6–3 conservative majority.

This renewed push for “court-packing”—which can be defined neutrally as expanding the Court for political reasons—comes after a term that produced ruling after ruling that angered progressive politicians and activists. “Weeks after schoolchildren were massacred in Texas, they took away protections against gun violence,” said Sara Lipton, executive director of Take Back the Court Action Fund during Monday’s press conference. “During the hottest summer on record, they made it harder for the EPA to combat climate change. And in a year where state houses across the country pushed hateful anti-trans legislation, the court eviscerated the boundary between church and state, opening the door to discrimination and violence.”

To his credit, President Joe Biden hasn’t yet endorsed such a radical proposal. During the 2020 presidential campaign, he allowed that the Court was “out of whack,” but rejected court-packing even as his primary opponents embraced various kinds of “reform.”

Perhaps Biden recognizes that moves to enlarge the Court have a mixed record, to say the least. Even setting aside Franklin Delano Roosevelt’s disastrous Judicial Procedures Reform Bill, court-packing has a dubious pedigree. Though the Constitution doesn’t specify the number of justices, each historical expansion was accompanied by political mischief.

The Judiciary Act of 1789 set out six justices, but the Judiciary Act of 1801 (also known as the Midnight Judges Act) would’ve reduced the Court to five members at its next vacancy, to thwart the incoming president, Thomas Jefferson. In 1802, Congress restored the Court to six seats, a move that Justice Samuel Chase opposed, leading to his impeachment (but not removal).

As the country grew, Congress created new circuits, with new justices appointed to each one. That all seems innocuous, but there were also convenient political reasons for adding them, which didn’t always inure to the nation’s benefit.

A seventh seat was added in 1807, in part because Jefferson wanted to temper Chief Justice John Marshall’s Federalist proclivities, an unsuccessful maneuver given Marshall’s skill at swaying new colleagues. The eighth and ninth seats added in 1837 allowed a Jacksonian reshaping, with the new justices supporting Roger Taney’s authorship of Dred Scott. Then a tenth seat was added in 1863, in part to allow Abraham Lincoln more leeway.

That tenth seat was never filled, however, and, to prevent Andrew Johnson from naming anyone—and at the request of Chief Justice Salmon Chase (no relation to Samuel), who presided over Johnson’s impeachment trial—Congress in 1866 cut the Court back to seven members, such that nobody would be named to the next two open seats, either. Two more seats did then become vacant, but the Judiciary Act of 1869 increased the bench back to nine seats, a number that has survived 150 years, allowing the Court to earn the stability and prestige it never had previously.

The most famous example of attempted court-packing is, of course, FDR’s maneuver in 1937. The president was fresh from a massive reelection—the famous “as goes Maine, so goes Vermont” year, when Roosevelt won all but those states—but he was unhappy about a series of rulings against his New Deal programs. He proposed adding a new justice for every sitting justice older than 70½, up to a maximum bench of 15. The plan met heavy bipartisan resistance in Congress and faced public opposition by the justices, including ur-progressive Louis Brandeis and FDR’s own vice president, John Nance Garner. The move led to huge Democratic losses in the 1938 midterm elections, with Republicans gaining 81 seats in the House and eight in the Senate.

Until recently, no real attempts at court-packing had been made since the 1930s, though calls to “Impeach Earl Warren” were heard in the Jim Crow South. As with most such proposals in our history, the partisan appeal is both evident and heavy-handed. But if Democrats think they’d be “rebalancing” an “out of whack” Court, then they deserve the political losses that such ends-justify-the-means radicalism would inevitably cause. And if they think that packing the Court would restore “norms”—accepting their premise that either Senate Republicans or the Court itself broke those norms—then they really don’t understand the nature of governance.

Just as two wrongs don’t make a right, you can’t depoliticize institutions by further politicizing them. As Bernie Sanders (of all people) put it two years ago, if the Democrats go through with their plan—which would also require ending the legislative filibuster in the Senate—“The next guy comes in, maybe a Republican, somebody comes in, you have two more. [Eventually], you have 87 members of the Supreme Court. And I think that delegitimizes the Court.”

Photo by Jemal Countess/Getty Images for Take Back the Court Action Fund

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