Court Packing

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

In recent months, you may have heard this term brought up more and more in relation to President Trump's nominating Amy Cohen Barret and her subsequent confirmation. Her confirmation means another conservative justice on the Supreme Court; and more notably, one who is distinctly underqualified for the position (although there are no official qualifications to be a justice). As the highest court in the land, the ramifications of this appointment could be huge; the balance is now tilted in favor of conservative, nigh reactionary, policy. Her appointment jeopardizes women's right to choose, the affordable care act, and more.

Because Supreme Court justices are appointed for life, the decision over who is appointed is especially critical. Because she is confirmed, there is really not much we can do to change that, though impeachment is an option is given cause. This inability to respond is particularly frustrating, considering the way Republicans rushed to confirm her in the middle of an election, yet blocked President Obama`s nominee, Merrick Garland, when it was a full nine months before the election. However, therein lies the problem and the solution to fixing the imbalanced representation of political affiliations in the SCOTUS in court packing.

So what exactly is court packing? Court packing is essentially characterized by an effort to manipulate the Court`s membership or balance for partisan ends. It most commonly is used in reference to changing the size of the Supreme Court by adding more justices. It is important to understand that the Constitution of the United States never actually set a requirement for the size of the Supreme Court; it leaves it to the discretion of Congress to decide. The Judiciary Act of 1789 set the first requirement, putting the court size at 6 justices. Since then, the size of the court has fluctuated back and forth between adding more or less justices. However, the court size was set, and has remained, at nine justices since 1869. After so long settled at a number, the court is likely to be expanded again when President Biden enters office.

There are definitely drawbacks to increasing the size of the court. The Republicans violating the norms that govern who is appointed and how the process goes is already considered an example of court packing. One norm that was violated was appointing a justice who doesn't respect precedent. Barret has expressed on numerous occasions that she does not believe there is a super-precedent established by Roe v Wade, despite it standing for nearly fifty years now. Another norm that was violated was in the process; Barret was confirmed in the midst of an on-going election.

Her appointment is an example of court packing that is already harming the respect for the Supreme Court. To counter this unfair conservative tilt in the court, Biden can respond by packing the court as well, this time in the more well known sense of adding more justices. The reality is that if Biden pursues this, it will because the Republican party forced us in this direction with their violation of norms. Yet however good the reasoning, it is a reality that further court packing will still further diminish the standing of the Supreme Court. Yet I would contest this is a lesser price to pay than the ramifications of allowing this move to go un-countered.

Whether Democrats will be able to succeed in this endeavor is a separate issue. It is very likely to be dependent on how Democrats do in the Senate races. If they only win a bare majority (or less), than it is more likely that they will expend their effort and focus on COVID-19 or other pressing issues. If they come away with a larger majority however, it is very likely they will be able to pursue this and successfully expand the court.

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