The idea of court packing insinuates that democratic erosion is underway. Courts often operate as guardrails to democracy but once they are overtaken by anti-system parties, they serve as effective agents of democratic erosion. Following the death of Supreme Court Justice Ruth Bader Ginsburg (RBG), the President has been urged to select a nominee that will serve as RBG’s successor. It is evident that Republicans more than Democrats have a deeper interest when it pertains to selecting federal judges, particularly Supreme Court Justices based on their history of ensuring that their party maintains control over the judiciary. There have been discussions amongst Democrats concerning enlarging the Supreme Court if Trump’s nominee gets confirmed by the Senate. These proposals to adjust the seating of the Supreme Court is a result of the fear that President Trump and the Senate, which is dominated by the Republican party, will replace RBG with a critical conservative. This idea to legally expand the seats of the Supreme Court Justice to favor partisan approach is referred to as court packing. However, court packing defies the virtues and principles that the foundation of the American judiciary system was built upon. Our Judicial branch is a separate branch of government because of its essential virtue to be nonpartisan and nonpolitical. This separation of powers is utilized so that liberty is preserved and prevents the removal of democratic principles that the Court was founded on.
One of the primary reasons why court packing should be rejected is because it secures the idea that when the opposition controls a majority of the court, the ruling party may add members wherever necessary to ensure their policies are protected. Additionally, a provisional mandate that prohibits the government from adding new judges to appellate and district courts in an effort to rectify the Supreme Court Justice imbalance would not exist (Olsen, 2020). As a result, judges would consider their controversial rulings as a temporary standpoint that can potentially be reversed by the next reigning government who chooses to stack the court with their affiliated members (Olsen, 2020). If the government moves forward with suggested proposals to expand the Supreme Court or to reduce the term of federal judges, the Court will suffer from a decline in credibility. As mentioned previously, the Judiciary System was developed to serve independently of the other branches and to engage in these proposals would eliminate all principles that govern the independence of the American Judiciary system. The Supreme Court has gained significant power since the development of our nation, and the Court’s politically controversial composition is a byproduct of such influence.
As controversial as the topic of court packing is perceived, many people have suggested an alternative proposal to relieve the Supreme Court. The proposal consists of adjusting the tenure of federal judges by limiting the duration of their position (Wheeler, 2020). Currently, federal judges serve good behavior term limits, which means they are appointed for life on the account of good behavior. These judges hold their seat until they resign, die, or are removed from office. According to Wheeler, one of the most highly favored term limit proposals suggests an eighteen-year term followed by service on a lower court to honor the constitutional premise of good behavior tenure, if the justice wishes (Wheeler, 2020). If this arrangement were to be fully implemented, the adjustment would produce a vacancy every two years to the Supreme Court not accounting for unanticipated openings. Therefore, the partisan struggle associated with the confirmation process would be lessened because both parties acknowledge that the nominee will be serving a limited term compared to the half century terms currently in place.
This concept of court-packing has been commonly associated with democratic backsliding. Also known as democratic erosion, it is the gradual decline in the quality of democracy. Mainly, this decline is perpetuated by the weakening of political institutions that are intended to sustain a democratic system. For this reason, court-packing has been linked to democratic backsliding due to the court’s role in politics suggesting that democratic erosion is the ultimate consequence for what is to become, if the potential adjustments to the Supreme Court are accepted. As mentioned by McCoy and Somer in “Pernicious Polarization and Democratic Resilience: Analyzing the U.S. in Comparative Perspective,” critics suggest that the intense polarized climate regarding the Supreme Court often operates as a barrier to democracy and the members involved serve as effective agents of democratic erosion. Elements of democratic erosion can be discovered in structural changes such as politics, government dynamic, and economics. In reference to politics and government, neither the power of the judiciary nor the influence of partisan control reigns constant over a period time. Therefore, the outcome of every election is crucial to the balance of powers for interbranch affairs operating with democratic norms and entitlements to legal predications.
Accepting strategic proposals of court-packing that offers options to modify democratic entitlements diminishes the fundamentally democratic principle of citizens electing leaders that will employ powers such as federal judges. Instead, it portrays the notion that partisan favors can be granted in order to protect their agenda and policies, despite the American judiciary being founded on impartial and nonpartisan values. No partisan party should feel entitled to altering democratic precepts. Court packing would do just that. Essentially, the court’s legitimacy would be compromised.
References
https://www.brennancenter.org/our-work/analysis-opinion/case-against-court-packing
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476889
McCoy and Somer in “Pernicious Polarization and Democratic Resilience: Analyzing the U.S. in Comparative Perspective
Hi Deborah! I really enjoyed reading about your perspective on court packing. I agree that court packing could set a dangerous precedent. You did a good job of outlining the potential volatility that could ensue if court packing was initiated. It also marks a clear departure from the intended position of the Supreme Court. While court packing might not be the right move, I thought the idea of term limits that you mentioned could be an important compromise. As we look at democrats considering court packing, I think it is also important to look at some of the democratic norms that were eroded during the nomination of Merrick Garland and Amy Coney Barrett. The stalling of Garland’s nomination and the rushed process of Barrett’s both showed that republicans are also engaging in partisan maneuvers that go against democratic norms in the United States. We have seen a lot of constitutional hardball and threat to mutual toleration that is partially due to increased polarization. I appreciated that you pointed out the threat of polarization to the Supreme Court, something that we are seeing now. It will be interesting to see what happens in January with the Georgia run-offs and the inauguration of Biden.
Deborah, thank you so much for choosing to cover this topic. The reputation of the judiciary as an impartial institution of justice has devolved into what people see as a partisan bloodbath ever since the confirmation hearing of Robert Bork.
You view court packing as a threat to our current democracy, but is it possible that certain circumstances can justify such a move? As Celia Conway pointed out in a separate comment, “constitutional hardball” has resulted in some questionable practices regarding Senate confirmation of Justices over the past five years. Could court expansion be a remedy for these measures?
I also hate to be that guy, but the text of the Constitution warrants a second look. If court packing presents such a threatening danger to democracy as we know it, can we discern any reason why the framers would decline writing in a specific number of justices to serve? I suppose it’s certainly possible that, while the courts should be above partisanship and be champions for minority rights, an unchecked judiciary presents a danger that requires careful balancing with the interests of the majority. This is purely conjecture though.
Why, in addition, would the framers also give lifetime appointments to federal judges? Perhaps, and this is conjecture as well, the experience that a Justice gains while serving is invaluable wisdom and ought to be utilized fully by allowing Justices to serve for a lifetime as long as they maintain good behavior.
I would love to hear more of what you think about this. While I agree that blatant, partisan court packing is a threat to democracy, I think it often goes unsaid that the court needs to undergo healthy expansion as the population increases. At what point such expansion is warranted, it is hard to say. My only hope is that, when it happens, it will be founded on a mutual, bipartisan understanding borne out of concern with the efficient operation of the courts rather than the dirty, partisan battles we’ve seen as of late.