The vow by Republican President Donald Trump and the Republicans to quickly fill U.S. Supreme Court Justice Ruth Bader Ginsburg’s seat despite a looming election has revived talk among some Democrats of expanding the number of justices on the court.
These Democrats, along with progressive activists, say all options must be considered to counter what would become an entrenched 6-3 conservative majority that could threaten access to healthcare, abortion, and civil rights.
A plan to expand the court would likely lead to a bare-knuckles political fight with unpredictable consequences for both parties. Here are a few things to consider about “court packing.”
SIZE OF THE COURT
The number of justices on the high court has remained at nine since 1869, but Congress has the power to change the size of the bench and did so several times before that.
LAST PACKING PLAN FAILED
In 1937, President Franklin Roosevelt, facing a court that repeatedly struck down his New Deal legislation, proposed adding up to six justices, one for each member of the court over the age of 70. The plan faced considerable opposition, including in Roosevelt’s own Democratic party, and was never enacted.
ABOLISHING THE FILIBUSTER
It is not clear Democrats would pursue a court packing plan. Democratic Senate leader Chuck Schumer told fellow Democrats on Saturday that “nothing is off the table for next year” if Republicans move forward with Trump’s nominee.
But expanding the court would require Democrats to control Congress and the White House. They would need to ditch a longstanding procedural rule in the Senate requiring 60 votes to overcome a filibuster, a tactic frequently used by the minority party to hold up legislation.
Democratic Senator Ed Markey wrote on Twitter on Friday that if Republicans seat a new justice during an election year, after refusing to give former President Barack Obama’s nominee Merrick Garland a hearing in 2016, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
The party’s presidential nominee Joe Biden has opposed the idea in the past. “I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he told the Iowa Starting Line in 2019. His running mate, Kamala Harris, however, told Politico last year that she was open to court packing.
THE COURT’S LEGITIMACY
In an era of hyper partisanship, the high court’s legitimacy has been increasingly called into question, particularly since the fight over Garland’s nomination. Packing the court could prompt future Republicans to further expand the institution and could strengthen the view that the court is purely partisan and renders decisions based on politics rather than the law.
Besides packing the court, activist groups and Democrats have broached the idea of imposing term limits for justices. This would likely require a constitutional amendment, though some scholars have proposed ways to accomplish term limits by statute.
(Reporting by Andrew Chung; Editing by Noeleen Walder and Daniel Wallis)