What is ‘court packing’ and could it happen following Ruth Bader Ginsburg’s death?
In the days following the death of Supreme Court Justice Ruth Bader Ginsburg, some Democrats have returned to the idea of “court packing” as a potential response if President Donald Trump gets another appointee on the bench.
Ginsburg, the second woman to be appointed to the high court, died Friday at age 87 from metastatic pancreatic cancer complications, McClatchy News previously reported. Her death has left a vacancy on the nine-member Supreme Court, giving Trump a chance to nominate his third justice.
She reportedly told her granddaughter in the days before her passing that her “most fervent wish” was that she wouldn’t be replaced until a new president is elected. But Trump has said it’s his obligation to fill the vacancy quickly, McClatchy News reports, and some Republicans have promised to vote on his nominee despite a precedent set in 2016.
That promise has sparked discussions about packing the court in 2021.
What is “court packing?”
In short, it’s the expansion of the Supreme Court.
The Constitution doesn’t require that it consist of nine justices, and Congress has the power to add to — or subtract from — the number of seats on the bench.
The court, however, has consisted of nine justices for more than 150 years.
Its size was last changed in 1869 to nine members, and it’s remained that way since. But prior to that, the court had been expanded or condensed six times.
The most recent attempt at “court packing” came during Franklin D. Roosevelt’s presidency. After winning a landslide election in 1937, he proposed a bill to expand the court. But it never passed in Congress, and the proposal cost him a “great deal of political support,” according to the Federal Judicial Center.
Why has it been brought up now?
If Trump gets another nominee on the bench, it could shift the conservative majority to 6-3 — causing concern among liberals. But the possibility that Senate Republicans would call for a vote to confirm his nominee before the November election is controversial.
In 2016, Senate Majority Leader Mitch McConnell, a Kentucky Republican, refused to hold a vote on former President Barack Obama’s Supreme Court nominee, Merrick Garland, because it was an election year, Associated Press reports. The vacancy left by Antonin Scalia remained for nearly a year, CNN reports.
Now, it seems Republicans may not make good on the precedent they set in 2016.
McConnell vowed just hours after Ginsburg’s death that he would call a vote on Trump’s nominee despite the election being just weeks away, AP reports. Some Republicans, however, have said the Senate should not vote until after the election.
If Republicans do confirm Trump’s nominee, experts tell NPR News that Democrats will face “tremendous political pressure” to pack the courts if they win control of the Senate and the presidency. They already have control of the House of Representatives.
To expand the court, Democrats would first have to get an act passed through Congress.
Some Democratic leaders, including Sen. Elizabeth Warren and vice presidential nominee Kamala Harris, have said they’re open to the idea of “court packing,” but others have seemed less sure, NPR News reports.
House Speaker Nancy Pelosi, a California Democrat, told ABC News in response to the idea of expanding the court: “Let’s just win the election, let’s hope the president will see the light.”
Democratic presidential nominee Joe Biden has not commented on expanding the court since the death of Ginsburg, but he has previously spoken out against the idea.
What are potential consequences?
Some Democrats worry that packing the court now would backfire and benefit Republicans down the road.
In 2019, Biden said “we’ll live to rue that day” if the court is expanded and that doing so would cause the court to “lose all credibility,” Politico reports.
Additionally, there are concerns about politicizing the judiciary.
“The more you politicize the judiciary, the more people will question the institution of judicial review,” New Barry Friedman, New York University law professor, told CNN.
But another law professor told NPR news the current makeup of the court is already “packed.”
“The Republicans packed the court after Scalia’s death when they denied President Obama his choice,” University of Chicago law professor Brian Leiter said, according to NPR. “Now they want to pack it further and more consequentially, given that they would appoint a conservative to replace the liberal Ginsburg. If they pack the court, the Democrats would be crazy not to do their own court packing.”
This story was originally published September 21, 2020 at 2:42 PM with the headline "What is ‘court packing’ and could it happen following Ruth Bader Ginsburg’s death?."
