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What is Court Packing and Why Does It Matter?

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administration�  s asylum policy �  an Obama judge.�   �  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,�   Roberts said in a statement. �  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.�   (Photo by Chip Somodevilla/Getty Images)
By Andrew Leonatti on October 04, 2019

It was drilled into most of our heads in high school civics and government classes: the U.S. Supreme Court has nine justices. But what most people don't know is that the number of justices is not set in stone.

And with the likelihood of a conservative majority of justices for the foreseeable future, several Democratic presidential candidates are promoting various plans to "pack" — add more judges — to the court as a way to tip the ideological balance. But is that a good idea? 

What Does the Constitution Say?

While Article III of the U.S. Constitution establishes the Supreme Court, it also gives Congress broad discretion for establishing the structure of the judicial branch. The first court had six justices, before President John Adams and the Congress reduced the number of justices to five. The number of judges then fluctuated until it hit nine in 1869, where it has remained ever since.

So, it wouldn't take a constitutional amendment to change the number of justices. Congress would simply have to pass a law, and the president would need to sign it.

Past Attempts at Court Packing

The most notorious — and failed — attempt at court packing came from President Franklin D. Roosevelt in 1937. Faced with a court that was hostile to several of his New Deal initiatives, Roosevelt proposed a law that would allow the president to appoint a new justice, and up to six in total, for each current justice on the court older than 70 years and six months. The plan faced broad opposition from Congress and Roosevelt's own vice president and never gained traction.

Current Plans

With resentment over President Obama's foiled Supreme Court nomination of Merrick Garland lingering and the death of the filibuster for judicial nominations in the Senate, several Democratic presidential candidates see adding justices as a way to advance their priorities in the decades to come.

Noting that "the most critical issues of our lifetimes, before and in the future, will be decided by that United States Supreme Court," Sen. Kamala Harris said she was open to adding more justices to the court.

In an effort to "de-politicize" the court, Sen. Elizabeth Warren suggested possibly bringing justices from the U.S. appellate courts onto Supreme Court cases.

But Pete Buttigieg and Beto O'Rourke are supporting the most ambitious court-packing/reform plan. Their plan would have a 15-justice court, with five justices affiliated with the Democratic Party and five justices affiliated with the Republican Party. Those 10 justices would then unanimously appoint the remaining five justices to one-year terms, two years in advance. That plan runs into trouble, however, because the Constitution requires the Senate to approve judicial nominees.

Does This Really Need to Happen?

As our politics become more divisive, it is hard to fault these candidates for supporting plans that would make it easier to enact their agendas. The Supreme Court is likely to weigh in on society-transforming issues in the years to come on abortion, LGBT rights, gun regulations, gerrymandering, and many others.

However, these plans would also politicize the court even more than it is now. Can a Democratic president and Congress really expect a Republican president and Congress to resist upping the ante the next time they are in charge? When would the gamesmanship end?

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