Packing the Supreme Court

Elsa Paulsen, Apr 7, 2021

The death of feminist and legal champion Ruth Bader Ginsberg only 47 days before election day incited  a storm of debates surrounding the procedures and makeup of the Supreme Court.


The controversy began with concerns over President Trump’s rapid replacement of the esteemed justice. Democrats were quick to point out that in 2016 Mitch McConnel, the Senate Majority Leader at the time, blocked any sort of hearing for Obama’s Supreme Court Nominee, Merrick Garland, following Antonin Scalia’s death-- even though Scalia’s passing occurred nearly nine months before election day[1].  Meanwhile, Trump named Amy Coney Barrett as Ginsberg’s replacement after only eight days. As she swiftly went through the confirmation process, the Democratic caucus and then-Senate Minority Leader Chuck Schumer didn’t mince words when calling these actions “the height of hypocrisy”[1]. Now, with Barrett on the bench, conservative leaning justices dominate their liberal counterparts six to three. 


The court’s intense partisan divide led to examinations of previous  administrations that appointed the right-leaning court that will exist for possibly the next few decades. Of the five presidents that nominated the current justices, three were Republicans, (Trump, W. Bush, and HW. Bush), and two Democrats, (Obama and Clinton)[2]. Of the Republicans, only HW Bush won the popular vote for their initial election[3]. Abolishing the electoral college and determining the presidency based on the popular vote is a popular proposal among Democrats, so this information led many to the opinion that the makeup of the current Supreme Court is not just. 


The fact that two presidents that did not initially win the popular vote have appointed five of the court’s current justices, and Barrett’s, swift, somewhat hypocritical confirmation has incited conversations revolving around reforming the Supreme Court. With Democrats controlling the legislative and executive branches, all eyes are on their party and their potential efforts to gain more power in the judicial branch. 


President Biden has said in the past that he was against court reform and that “we will live to rue that day” that we change the makeup, although that was before conservative justices came to dominate the bench. [8]. However, after Justice Amy Comey Barrett’s confirmation, there has been added pressure on President Biden to try and restore the courts idealogical parity. Much of the pressure comes from esteemed Democrats such as Senator Cory Booker, Vice President Harris, Senator Amy Klobachar, and Senator Elizabeth Warren, who have all expressed support for a possible court reform[9].


There have been multiple proposals to change the court’s orientation,  ranging in their comprehensiveness, controversiality, and feasibility. However in order for any court reform proposal to be truly considered, it must represent a politically neutral solution-- constituting a change that could ultimately better the U.S Judiciary's role as an impartial body, rather than simply benefiting one party in the short-term[4].


One popular idea is Secretary of Transportation Pete Buttigieg’s 15 Justice plan, which consists of five justices of liberal ideology, five conservatives, and the other five are to be chosen by the ten justices collectively[5]. Another popular proposition is limiting the justice’s terms to 18 years. This plan still allows for the justices to have a long and influential career on the high court, and it puts appointments in a regular cycle instead of the random cycle we have now[4]. The latter proposal has gained substantial support among Democrats, since Republicans have appointed 14 of the last 18 Justices to the court since 1972, despite an almost even distribution of power in the executive branch[6].


Both of these plans have the potential to equally benefit both parties in the long run, although as of now, they’re technically both unconstitutional. Buttigieg’s plan is unconstitutional because the constituion mandates that only the president can appoint new justices[10]. The constitution also states that the justices should hold office for life as long as they are in good behavior[10]. Thus, the implementation of both of the aforementioned proposals would require a new constitutional amendment, that ratification of which seems near impossible given the current political climate. 


Given the infeasibility of a new constitutional amendment, many have looked to court reform proposals that can be legally implemented within the parameters of the current constitution.   One constitutional method to expanding the Supreme Court that’s being considered is court-packing. This entails adding to the number of justices on the court to balance out the ideological difference. Democrats would most likely shift the total to 13 justices, meaning President Biden would have the opportunity to appoint four new liberal justices, moving the bench’s position to 7-6, leaning to the left[4]. In comparison to the aforementioned more nuanced proposals, accomplishing court-packing would only require passing legislation, making it a more serious possibility given Democrats’ control over both houses of congress. 


Although court-packing seems to be an effective way to even the balance and make up for the unfair amount of appointments the Republican has received, this scheme will open the door to future judicial chaos. 


An essential aspect of the judicial branch is its independence from the other two branches of government. In Federalist 78, Alexander Hamilton wrote, “nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution,”[7]. If Democrats change the number of justices, it sets a precedent for future legislators that could allow for continuous additions to the Supreme Court. Constant change disrupts the court’s independent nature, and could place justices--concerned about dilutions of their influence-- at the behest of legislators-- a potential conflict of interest that should not be taken lightly. 


In the public eye, the Supreme Court is a revered institution that represents an invaluable part of the checks and balances process, and is the highest authority for determining the constitutionality of law. What's more, it represents one of the last parts of the government that's largely untethered from any sort of partisanism and change, staying at nine justices since 1869[8]. Thus, any unprecedented change to its composition could incite a decrease in the public's trust. Furthermore, frequent change and unrest within the highest level of the judicial branch could compromise it's ability to credibly interact with other branches of government.


Although there are grounds for the Democratic Party to feel they have unfairly been represented in the current Supreme Court with the Garland incident and unfair underrepresentation on the bench, the chronosystem of hostile politics makes neutral court reform propositions a mere dream. With bipartisan deals requiring a Constitutional amendment off the table, the only possible option is court packing which would disrupt the Founder’s intentions for the court and creates potential for future turmoil.


1. Elving, Ron. “What Happened With Merrick Garland In 2016 And Why It Matters Now.” NPR, 2018, Accessed 2 March 2021.

2. United States Senate. “Supreme Court Nominations (1789-Present).” U.S. Senate, 2020, Accessed 2 March 2021.

3. 270 to Win. “Historical Presidential Elections.” 270 to Win, 2020, Accessed 2 March 2021.

4. Stanton, Zack. “‘It’s a Crazy Way to Run a Country’: How to Reform the Supreme Court.” Politico, 2020, Accessed 2 March 2021.

5. Milhiser, Ian. “Pete Buttigieg longs for a non-political Supreme Court. That’s not really possible.” Vox, 2019, Accessed 2 March 2021

6. Supreme Court of the United States. “Justices 1789 to Present.” Supreme Court of the United States, 2020, Accessed 2 March 2021

7. Hamilton, Alexander. “Federalist 78.” All Things Hamilton, 2016, Accessed 2 March 2021

8. Greenfield, Jeff. “How Democrats Could Pack the Supreme Court in 2021.” Politico, 2020, Accessed 2 March 2021

9. Kirchner, Ben. “Supreme Court packing: Where 2020 Democrats Stand.” Washington Post, 2020, Accessed 2 March 2021

10. United States Constitution. Art.III, Sec. 1.