You may have heard that President Joe Biden wants to “pack” the U.S. Supreme Court.
But is that true? And if so, is it even likely to happen? Let’s dive into the facts and the history surrounding “court packing” and the judicial branch to find out.
First, we should address what “court packing” even is. Simply put, court packing is the practice of Congress and the president adding seats to the Supreme Court and filling those seats with justices who ideologically align with them.
In October 2020, then-presidential candidate Joe Biden sat down with interviewer Norah O’Donnell to talk about President Trump’s nomination of Justice Amy Coney Barrett to the Supreme Court. O’Donnell asked Biden specifically about “court packing.” Here’s what he had to say:
“If elected what I’ll do is put together a national bipartisan commission of constitutional scholars…and I will ask them to over 180 days come back to me with recommendations as to how to reform the court system.”
Shortly after taking office in January, President Biden made good on that promise by creating a commission to “study reforms” for the federal court system.
Do Our Courts Need Reform?
Before we consider if an institution needs reform, it’s helpful to look at what that institution is supposed to be. Fortunately for us, the Founders left a blueprint of the federal judiciary in the Constitution and their other writings.
Above all, the Founders wanted judges to be independent of the other two branches of government. This makes sense when you think about it. If the legislative branch (Congress, which makes laws) or the executive branch (the president and his agencies, which enforce laws) had any hand in judging how those laws are interpreted and applied, that situation would be ripe for abuse.
Instead, our republic wisely has a third branch of government to determine objectively whether laws are being followed and, at the federal level, whether laws being created are constitutional.
Because the judicial branch is independent of the other two branches of government, it should never cross over into the duties of those branches. For example, you may have heard the term “legislating from the bench.” This is when a judge crosses over into Congress’s job by creating laws instead of simply judging whether our laws follow the Constitution.
Insofar as our court system strays away from the vision of the Founders, it will need reform.
The Founders didn’t create the three branches of government with their three separate duties arbitrarily. They did so specifically to protect our freedoms. As we noted earlier, if the powers of making, enforcing, and judging the laws were given to the same body, it would be easy for that body to use the consolidated power to punish enemies and benefit friends.
So if any of the three branches of government begin to take over the work that properly belongs to another branch, that will require reform.
But this type of reform is most likely not what the Biden administration is talking about. And the concept of “court packing” would certainly not fall under a “reform”—in fact, the opposite is true.
Is Court Packing Likely?
While the Founders never specified the number of justices for the Supreme Court, one thing is clear: they never intended for there to be explicitly “conservative” or “liberal” justices. They only intended for there to be independent protectors of the Constitution.
The idea of “packing” the Supreme Court largely rests on the premise that there are conservative and liberal justices who simply want to use their judicial powers to push through their own policy preferences. This isn’t in the Founders’ vision of what the Supreme Court should be like at all.
The Supreme Court has had nine justices since it was increased from seven right after the Civil War in 1869. The last president to attempt to “pack” the court was President Franklin Roosevelt in 1937. President Roosevelt wanted to fill the court with up to 15 justices to rubber stamp his New Deal legislation.
And while some have accused President Donald Trump of so-called “court packing,” this accusation gets the term totally wrong. President Trump filled legitimate vacancies that came on the Court—the vacancies brought on by the death of Justice Antonin Scalia in 2016, the resignation of Justice Anthony Kennedy in 2018, and the death of Justice Ruth Bader Ginsburg in 2020.
It is the constitutional duty of the president to nominate judges to fill vacancies and the Senate to vote to confirm those nominees—which is exactly what happened in the cases of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
So far, in the very short time of Biden’s presidency, no Supreme Court seats have become vacant. So, will the Biden administration try to pack the court? That is, try to get Congress to add additional justices?
First, the administration has not indicated that it plans on doing so. President Biden has only given the answer that he wishes to “reform” the judicial branch. We will have to wait and see what he means by that.
Secondly, even if the administration did want to pack the Court, it would have a long road ahead of it. The process for adding seats to the Supreme Court requires passing a piece of legislation through the House and the Senate. This would require the Democrats to have 60 votes in the Senate to overcome the filibuster, which is unlikely in the current Senate.
No matter what happens, we should stand against the politicization of our third branch of government. The justices on the Supreme Court should remain politically independent, neutral mediators of the law, just as the framers of our Constitution intended.
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