Since the death of Justice Ruth Bader Ginsburg, Congress and indeed the rest of the country has been grappling with how we should proceed in filling the late justice’s seat. The Republican and Senate majority argument is a rewriting and violation of previously established norms—established by Republicans and known as the McConnell Rule, mind you—in that they are actively pushing to seat Amy Coney Barrett on the Supreme Court in an election year, a move which has caused quite a tumult in the Capitol, to say the least. The Democrat argument is not necessarily as straight forward but can be boiled down simply to opposition to Barrett’s appointment. But in their opposition to the appointment, some Democrat leaders have decided to reintroduce an old and possibly very dangerous idea to fix a conservative judicial majority: court packing.
Simply speaking, court packing is when one attempts to change the size of a court by increasing the number of justices, presumably to their advantage. If Barrett is approved, there will be a 6-3 conservative majority in the Supreme Court which could potentially last for many years considering the practice of justices presiding over the court until their passing. With a majority like this, many voters are concerned that the landmark Roe v. Wade decision can be, and likely will be, overturned. Fearing such a possibility, Democrat leaders are torn over the controversial court packing, with some such as Representative Alexandria Ocasio-Cortez seeing it as fair game while others such as Senator Bernie Sanders warn that Republicans can replicate such a move in the future.
As I mentioned before, court packing is not a new idea to American politics, but it is certainly controversial. When President Franklin D. Roosevelt attempted to increase the number of judges through his proposed Judicial Procedures Reform Bill of 1937, he would have granted the office of the president the ability to appoint an additional justice for every justice at least 70 years old up to a maximum of six new appointments. At face value, one could argue that is an incredibly funny image because, considering the old age of Supreme Court justices, there is a scenario where the number of justices constantly increases with every presidency as more and more people attempt to appoint their nominees to possibly comically large sizes. What I would argue makes such a move actually quite terrifying for democratic institutions is Roosevelt’s very specific six justice would create a majority of liberal justices as two were already on the bench. In one swift move, Roosevelt would have completely flipped the majority in the Supreme Court, but the bill was passed without his court packing provisions.
Now, considering the many moves that President Donald Trump has done over the course of his presidency that have led to the current trend of democratic erosion in our country, perhaps such a move would indeed be what saves democracy as some have argued. Be that as it may, the whole concept leaves a bad taste in my mouth of corruption and authoritarianism, not because of the people who propose it now as I might be tempted to agree with them in this instance, but because of the future implications of such a move. Ozan Varol in “Shadow Authoritarianism” from the Iowa Law Review presents the titular theory of shadow authoritarianism, a form of authoritarian behavior that takes on the facade of appearing democratic. In this article, Varol speaks of the importance of judicial review as an ostensible check on other branches of government, but it can be manipulated by the ruling regime. Varol mentions how judicial review can be used “as a mechanism for consolidating power, bolstering the democratic credentials of the incumbent regime, and allowing the incumbents to avoid political accountability for controversial policies.”[1] If a ruler can control the judiciary meant to keep them in check, they can very easily use said judiciary to serve them instead.
Do not get me wrong, I am certainly no supporter of President Trump and have already proudly mailed in my ballot, but even I am concerned with a move like court packing. Yes our democracy has eroded here in America, and yes this move could very well be what restores it and could be argued as fair game or getting even with Republican actions, but my concern that it sets a precedent for future presidents to come. Even if the next president does not see some authoritarian shift with the help of a packed court, what is to stop future presidents from doing just that? Even if we trust the current leaders and legislators, can we trust the future ones to not take this precedent and abuse it? I will admit, nowadays norms do seem to be very easy to completely ignore or change, but just setting the norm, I fear, can have lasting negative effects.
I am in a very confusing spot, seemingly along with the rest of the country, where I want American democracy to thrive but not at the cost of future authoritarianism. It is terrifyingly possible that the current debate over Barrett’s nomination can have lasting damage on our Supreme Court.
I too have wrestled with the idea of court packing and its implications, especially after reading the material for this course. I, however, have come away with a different conclusion. I believe that it should not be coined as ‘court packing’ because as you pointed out, that has a negative ring to it and leaves a bad taste in people’s mouths. Rather, it should be reframed ‘court reform’ — simply taking back what was stolen and leveling the playing field.
This is key in my view. Much of the discussion around the issue of court packing assumes that a Biden presidency (or a future liberal administration) would pack the bench full of liberals. This is not necessarily the case. In the early days of his Presidential Primary run, Pete Buttigieg outlined a comprehensive vision for court reform where 5 conservative justices and 5 liberal justices must mutually agree on 5 apolitical justices. This idea mitigates damage that would come from “a precedent for future presidents,” as it would not prompt partisan retribution. To one of your main points, on “the importance of judicial review as an ostensible check on other branches of government,” I would argue that the only way to restore the functionality of judicial review would be with comprehensive court reform, removing Republican politicians masquerading in judicial robes.