Expanding the Supreme Court in 2021? An Old Conversation Renewed

by Brady Miller

Throughout the 2020 U.S. presidential election cycle, the candidates debated a number of controversial and pressing issues: response to the COVID-19 pandemic, climate change, race and inequality, and more. Among those issues was the idea of “court packing:” whether candidates, including then-Democratic nominee Joe Biden, would be in favor of increasing the number of seats on the U.S. Supreme Court. Progressives in the Democratic Party pushed Biden to promise to pack the court after liberal icon Justice Ruth Bader Ginsburg passed away on September 18, 2020. The Republican-controlled Senate pushed to nominate and confirm another conservative Justice under President Trump, which would shift the balance of the court to be more conservative with six conservative justices and three liberal justices. Many Democrats and some Republicans argued that because Justice Ginsburg’s death came so close to the Presidential election, whoever won that election should get to nominate Ginsburg’s replacement.[1] Senator Susan Collins of Maine, one of the Senate Republicans opposed to Amy Coney Barrett’s hasty nomination and confirmation, said that “the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd."[2] When President Trump announced he was nominating then-Judge Barrett on September 26, nearly a million people had already cast their ballots in the 2020 election.[3] By the time she was sworn in as Justice Barrett on October 26, 2020, just a week away from election day, more than 60 million Americans had voted.[4]

Similarly, opponents of Barrett’s nomination argued that just 4 years ago, after the death of Justice Antonin Scalia on February 13, 2016, the Republican-controlled Senate blocked then-President Obama’s nomination of Judge Merrick Garland because he was nominated so close to the 2016 election.[5] President Obama nominated Judge Garland on March 16, 2016, nearly 8 months prior to election day, and at which point neither Donald Trump nor Hillary Clinton had won the nomination from their respective parties.[6] The argument pushed by Senate majority leader Mitch McConnell was that the Senate should “let the American people decide” in the November election.[7]

These two events and their contradictory logic have led to growing frustrations within the Democratic party, specifically from the progressive wing. Prominent figures such as Senator Ed Markey,[8] Representative Alexandria Ocasio-Cortez,[9] and House Judiciary Chairman Jerry Nadler,[10] among many others, have publicly expressed their support for an expansion of the Supreme Court to increase the number of liberal Justices, and in their estimation, swing the balance of the Court back toward the left. Others, like Senator Bernie Sanders, have opposed expansion of the Court but have suggested other ways to “rein in” the judiciary, including the imposition of term limits and/or rotation of judges between the Supreme Court and lower-level federal courts.[11] In response, some Senate Republicans have introduced a constitutional amendment to stop Democrats from expanding the Supreme Court, Mitt Romney among them, citing the need “to ensure the integrity and independence of the Supreme Court.”[12]

The idea of changing the size or other aspects of the Supreme Court is neither unprecedented nor impossible. Article III Section 1 of the Constitution sets up the judicial power of the Supreme Court and grants Congress the authority to “ordain and establish” the Federal Judiciary system.[13] However, the Constitution does not address the size of the Supreme Court, and as a result, the number of Justices has changed many times in our history. When the Federal Judiciary was created by way of the Judiciary Act of 1789, the Supreme Court was set to have six total Justices.[14] The Judiciary Act of 1801, encouraged by President John Adams, reduced the Court to five Justices.[15] During Thomas Jefferson’s presidency, Congress repealed the Judiciary Act of 1801, which re-established the number of Justices on the Court at six.[16] Then, in 1807, President Jefferson, along with Congress, expanded the Court again to have seven Justices.[17] The size of the Court remained static for 30 years until President Jackson added two Justices, expanding the Court to nine members.[18] During the Civil War, Congress briefly increased the Court to ten Justices, and subsequently reduced that number back down to seven Justices after the end of the Civil War in 1866.[19] Then, finally in 1869, while President Ulysses S. Grant was in office, a new Judiciary Act was passed, resetting the number of Justices at nine.[20] Since the Judiciary Act of 1869, 152 years ago, the size of the Supreme Court has remained unchanged. According to the Federal Judicial Center, the size of the Supreme Court fluctuated at such a high rate to “accommodate the establishment of new Circuits as the nation expanded.”[21] However, since the Court was finally set at nine Justices in 1869, thirteen new states have been admitted into the Union, four entirely new Circuits have been created,[22] and 170 new Federal Circuit Court judgeships have been created,[23] yet there has been no further “accommodation” made for the Supreme Court.

However, there have been a few notable attempts to increase the Court’s size since 1869. After the passage of President Franklin Roosevelt’s 1933 New Deal policies, the Supreme Court, in Schechter Poultry Corp. v. United States (1935),[24] invalidated a portion of his National Industrial Recovery Act (1933) which regulated the poultry industry. The Supreme Court unanimously held that the regulations in the NIRA were an unconstitutional delegation of legislative power that violated the Commerce Clause of the Constitution.[25] President Roosevelt was outraged at the Court’s decision, and once he was reelected to a second term, he advocated for the Court’s expansion through one of his famous fireside chats, citing the need to “restore the Court to its rightful and historic place in our Constitutional Government and have it resume its high task of building anew on the Constitution ‘a system of living law.’”[26] Roosevelt’s proposal added six new Justices to the Court, bringing the total to fifteen.[27] Six Roosevelt-appointed Justices would have easily tilted the balance of the Supreme Court to favor his interpretation of the Constitution and uphold his New Deal legislation. Roosevelt’s proposal never garnered support in Congress, and was even opposed by some of his Democratic colleagues, as well as by Justice Brandeis, who was regarded as the most liberal of the Justices on the Court at that time.[28]

Since President Roosevelt’s 1937 proposal to expand the Court, the concept has been a fringe policy until 2016, when it gained steam within the Democratic Party. No president since 1937 has publicly entertained the idea of expanding the Supreme Court until President Biden did so after his election in 2020. Prior to Justice Ginsburg’s death and the subsequent nomination of Justice Barrett, Biden said he was “not prepared to go on and try to pack the court,”[29] and while he still hasn’t explicitly come out in favor of expanding the court, he also hasn’t declared it out of the question. In September 2020, Biden said that if elected, he would establish a bipartisan commission on court reform, and ask them to “come back to [him] with recommendations as to how to reform the court system, because it’s getting out of whack.”[30] The Biden administration is in the process of setting up this commission, which will include legal scholars and senior Justice Department officials from the Bush and Obama administrations.[31]

While President Biden’s commission is a step toward Federal Judiciary reform, legal scholars warn that this commission isn’t likely to present sweeping, progressive court reforms. Harvard Law School Professor Noah Feldman says the bipartisan commission “almost by definition can’t possibly recommend something that fits the progessive agenda,” adding “that’s why it was constructed that way, it’s not an accident.”[32] Additionally, Ohio State Judicial Politics Professor Elliot Slotnick warns that “the commission, if it continues to be built this way, will end up being rather mainstream in what they do.”[33] Thus, the commission is increasingly likely to recommend smaller, more incremental reforms to President Biden, like the expansion of the lower courts within the Federal Judiciary and the imposition of term limits for Supreme Court Justices, both of which have bipartisan support.[34] Notably, the imposition of Judiciary term limits would likely require the passage of a Constitutional amendment.

Aaron Belkin, a progressive advocate for legal reform, says that if the commission does not suggest expanding the Court, “it hasn’t done its work, and it’s not taking the issue seriously.”[35] At this point in time, the expansion of the Supreme Court may be unlikely, but make no mistake, Federal Judiciary reforms are forthcoming. Progressive members of the Democratic Party such as Rep. Alexandria Ocasio-Cortez and Sen. Ed Markey will likely be disappointed with the extent of the reforms proposed by President Biden’s commission, but if the reforms are what legal scholars expect, they will widely be considered a step in the right direction.



 


[1] Barbara Sprunt, Amy Coney Barrett Confirmed to Supreme Court, Takes Constitutional Oath, NPR (Oct. 26, 2020), https://www.npr.org/2020/10/26/927640619/senate-confirms-amy-coney-barrett-to-the-supreme-court.

[2] Benjamin Swasey, Susan Collins: Whoever Wins the Presidential Election Should Fill the SCOTUS Vacancy, NPR (Sept. 19, 2020), https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914843085/susan-collins-whoever-wins-the-presidential-election-should-fill-scotus-vacancy.

[3] Michael McDonald, Early Voting Analysis for Sunday, Sept. 27, Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Eʟᴇᴄᴛɪᴏɴ Pʀᴏᴊᴇᴄᴛ (Sept, 27, 2020), https://electproject.github.io/Early-Vote-2020G/Early_Vote_Analysis_9_27.html.

[4] Michael McDonald, Early Voting Analysis for Sunday, Oct. 25, Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Eʟᴇᴄᴛɪᴏɴ Pʀᴏᴊᴇᴄᴛ (Oct, 25, 2020), https://electproject.github.io/Early-Vote-2020G/Early_Vote_Analysis_10_25.html.

[5] Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About A Principle, Not A Person,’ NPR (March 16, 2016), https://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person.

[6] Barack Obama, President of the United States, Remarks at the Rose Garden: Announcing Judge Merrick Garland as his Nominee to the Supreme Court (March 16, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/03/16/remarks-president-announcing-judge-merrick-garland-his-nominee-supreme.

[7] See Id.

[8] Ed Markey (@EdMarkey), Tᴡɪᴛᴛᴇʀ (Sept. 18, 2020, 9:00 PM), https://twitter.com/EdMarkey/status/1307122232850870274.

[9] Alexandria Ocasio-Cortez (@AOC), Tᴡɪᴛᴛᴇʀ (Oct. 26, 2020, 8:13 PM), https://twitter.com/aoc/status/1320881248861126663?lang=en.

[10] Jerry Nadler (@RepJerryNadler), Tᴡɪᴛᴛᴇʀ (Sept. 19, 2020, 2:00 PM), https://twitter.com/repjerrynadler/status/1307379171354652673?lang=en.

[11] Ginger Gibson, U.S. Senator Bernie Sanders against increasing number of Supreme Court justices, Rᴇᴜᴛᴇʀs (April 1, 2019), reuters.com/article/us-usa-election-sanders/u-s-senator-bernie-sanders-against-increasing-number-of-supreme-court-justices-idUSKCN1RD3AL.

[12] Lee Davidson, Mitt Romney joins GOP senators seeking to block court packing with constitutional amendment, Sᴀʟᴛ Lᴀᴋᴇ Tʀɪʙᴜɴᴇ (Jan. 25, 2021), https://www.sltrib.com/news/politics/2021/01/25/mitt-romney-joins-gop/.

[13] U.S. Cᴏɴsᴛ. Art. III, § 1.

[14] The Supreme Court of the United States and the Federal Judiciary, Fᴇᴅᴇʀᴀʟ Jᴜᴅɪᴄɪᴀʟ Cᴇɴᴛᴇʀ (1967), https://www.fjc.gov/history/courts/supreme-court-united-states-and-federal-judiciary.

[15] See Id.

[16] See Id.

[17] See Id.

[18] See Id.

[19] See Id.

[20] See Id.

[21] See Id.

[22] “Chronological History of Authorized Judgeships - Courts of Appeals”, Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Cᴏᴜʀᴛs (2021), https://www.uscourts.gov/judges-judgeships/authorized-judgeships/chronological-history-authorized-judgeships-courts-appeals.

[23] See Id.

[24] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[25] See Id.

[26] Franklin D. Roosevelt, President of the United States, Fireside Chat 9: Court-Packing (March 9, 1937), https://millercenter.org/the-presidency/presidential-speeches/march-9-1937-fireside-chat-9-court-packing.

[27] See Id.

[28] Scott Bomboy, Packing the Supreme Court explained, Nᴀᴛɪᴏɴᴀʟ Cᴏɴsᴛɪᴛᴜᴛɪᴏɴ Cᴇɴᴛᴇʀ, (March 20, 2019), https://constitutioncenter.org/blog/packing-the-supreme-court-explained.

[29] Pat Rynard, Interview with Joe Biden, Former United States Vice President, in Independence, Iowa, Iᴏᴡᴀ Sᴛᴀʀᴛɪɴɢ Lɪɴᴇ (July 4, 2019), https://iowastartingline.com/2019/07/05/joe-biden-interview-talk-about-the-future-in-dem-primary/.

[30] Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death Revives Talk of Court Packing, Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (Sept. 19, 2020), https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html.

[31] Tyler Pager, Biden starts staffing a commission on Supreme Court reform, POLITICO (Jan 27, 2021), https://www.politico.com/news/2021/01/27/biden-supreme-court-reform-463126.

[32] Madison Alder, Term Limits More Likely Than Court Packing from Biden Panel, Bʟᴏᴏᴍʙᴇʀɢ Lᴀᴡ (Feb. 16, 2021), https://news.bloomberglaw.com/us-law-week/term-limits-more-likely-than-court-packing-from-biden-panel.

[33] See Id.

[34] See Id.

[35] See Id.

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