During his first four years, President Trump appointed 226 judges to federal district, appeals, and supreme courts, almost three fourths as much as President Obama did during his whole two terms. Many Democrats have now been pushing for President Biden to begin his own spree of court nominations as a way of counteracting Trumps actions. Would this potential second round of court packing really be the solution to recent erosion that many claim it to be, or would it just lead to further issues for the stability of our democracy?

Court packing is a classic example of democratic backsliding, where a would-be authoritarian uses legally permitted means through the democratic system, such as the President’s power to appoint judges with the help of the Senate, to undermine that democractic system. It allows for executives take over neutral areas of the government to almost ‘rig the game’ in their favor. Rulers can use this new influence over separate governmental branches and agencies in countless ways, such as having the FBI turn the other way and ignore potential investigations into an autocrat’s wrongdoings or getting the courts to make unfair or biased rulings [1][3].

For Trump, packing the courts was a way to strengthen his power by filling up the Judicial branch with those he thought his supporters and loyal to him, with the hope that it would ensure he would be safe from any possible checks by the court, and allow him to effectively take control of the Judicial branch through his supporters. By packing the courts, Trump also helped to move the courts away from being the neutral party it is meant to be, and shift it into a more partisan, biased, and obedient branch, which could become something close to a simple extension of the Executive branch [2][3].

After witnessing these potentially dangerous and democratically unstable events take place, some Democrats have even concluded that the best course of action is to use the other side’s tools against them. We have begun to see growing numbers of calls for Biden to begin packing the courts himself, this time with more Democratic leaning judges, with the help of the current Democrat controlled Senate, all to counteract the partisanization of the court that occurred under Trump.

The Supreme Court has long been the upholder of the Constitution, and the decider of what is and isn’t permitted under its laws. As such, it is understandable why the concept of a potentially partisan and subservient Judicial branch is so worrying, and why many want to find a fix quickly. Some politicians have begun calling for Biden and the Senate to fill the court up with more new justices while increasing the number of seats. They claim that by adding new progressive leaning judges to the court, we can solve the current imbalance and Republican supermajority which has led to many fearing for the court’s legitimacy. Such a plan is not prohibited in our democratic system as well, as the constitution makes no mention of the size of the supreme court, and Congress has in the past changed the court’s size, both to make it larger and smaller.

However, in reality such an act might in fact further the current degradation of our democratic system, rather than slow it down, as well as lessen the publics views of the court and its legitimacy even more in the future. By expanding the Supreme Court, the Left would be creating the precedent in Congress that expanding the Supreme Court for reasons you deem correct is okay, leading to an extremely dangerous situation. The unspoken rules and norms of government are intrinsically important to the stability of a constitutional democracy [1], and the branches of government rely heavily upon these rules. Government officials and rulers, even autocratic ones, have long shown a clear forbearance when it comes to breaking these rules. Since there is no written rule that forbids government from changing the size of the Supreme Court as they see fit, it stands to reason that it is these unwritten norms that have prevented government officials from using this ability more often [1][2][3]. By expanding the Supreme Court, and possibly creating this new norm, Biden and the Senate may open the gates for future administrations to do the same, creating an endless loop of partisan and polarized expansion [3][4].

Furthermore, by utilizing these autocratic erosion tactics, one runs the risk of becoming an autocrat themselves, even if they never intended to. If Biden fills the courts with progressive Democrats loyal to the Left first and the constitution second, how does the result differ from what we saw under Trump beyond the color switching from red to blue. One can also never truly tell if someone is or isn’t a closeted autocrat, and although Biden may not be one, who is to say that by setting up a loyal leftist Supreme Court now doesn’t set the stage for a future ruler to easily use the new courts composition to continue with Trump’s goals of dismantling our democracy and becoming an autocrat [4]. It is very easy for people to slowly slip into supporting autocratic rulers as long as the ruler supports their ideas, which also makes it clear why so many people still push for the expansion of the court despite the risks, and by allowing the President and the Senate to appoint as many new justices as they see fit, you create a clear and now precedented method for executives to completely remove any threat to their power coming from the Judicial branch while also exerting near total control over the court, all through completely legal and democratic means and with the uninformed support of the population [1][2][4].

Regardless of what ends up happening, whether the court is expanded, restructured, or left alone, it is important that we as citizens still recognize these rising issues, and become aware of the very real danger certain seemingly desirable and well-meaning actions, even those intended to counteract the erosion of our democratic system, can pose to our nation’s stability, especially when those actions are typically autocratic tactics. I think most of us can agree, continuing to pack and expand the courts is not the right option in the long term, and we must begin looking for other methods to rebalance and fix the court system post Trump’s packing and partisan shifts.

[1] Steven Levitsky and Daniel Ziblatt, “Subverting Democracy,” in How Democracies Die, 72-96. New York: Crown Books, 2018.

[2] Nancy Bermeo, “On Democratic Backsliding,” Jounral of Democracy 27, no. 1 (January 2016): 5-19.

[3] Thomas Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, 126-130. Chicago: University of Chicago Press, 2018.

[4] Matthew Graham and Milan Svolik, “Democracy in America?: Partisanship, Polarization, and the Robustness of Support for Democracy in the United States,” in American Political Science Review 114, no. 2 (2020):392-408.