Democrats Court Packing Plan Is Unwise

Several candidates running for president recently announced support for plans to “reform” the United States Supreme Court by expanding the number of justices from nine to a larger number. The candidates have decried the conservative majority on the court, suggesting the reason they want to pack the court with additional justices is to reverse the current conservative majority.

Candidates announcing either outright support for, or consideration for, expanding the number of Supreme Court justices include, but are not limited to, Kamala Harris, Elizabeth Warren and Beto O’Rourke.

But court packing is a shortsighted, unwise idea that threatens the legitimacy of the court and risks creating a dangerous precedent.

Creating such a precedent would mean that the party in power, whenever it controls both the presidency and Congress, could effectively ensure its legislative measures are insulated from constitutional Supreme Court scrutiny by adding additional justices, appointed by the president in power at that time. The Supreme Court is supposed to act as a constitutional firewall against unconstitutional laws. Court packing would only threaten to eviscerate that protection.

One popular Democratic president tried to pack the court more than 80 years ago. In 1937, after President Franklin D. Roosevelt had become frustrated over rulings from the Supreme Court that blocked two of his Great Depression-era New Deal measures, he attempted to pack the court. FDR pushed for the “Judicial Procedures Reform Bill of 1937,” which would have allowed him to appoint up to six additional Supreme Court justices for every justice older than 70 years and 6 months who had served for 10 years or more.

While FDR publicly argued the legislation was needed because the more senior members of the court were not able to keep up with the caseload and needed help, the argument was disingenuous, at best. There was no real evidence that the older members of the court were having any difficulty with workload. The real purpose behind the legislation was clearly to “pack the court” by allowing FDR to appoint a significant number of new justices who FDR believed would support his New Deal measures.

Although FDR won a landslide victory for president in 1936, his court-packing push was met with swift and overwhelming opposition from the American people, politicians and even from some sitting Supreme Court justices. FDR’s court-packing legislation died.

Whatever one thinks of FDR’s undeniably historic and extremely influential presidency, his court-packing plan was viewed largely as an overreaching power grab that tread far too much into an independent branch of government.

For the better part of the last 80 years since FDR was rebuked for it, court-packing has been viewed largely as a fringe, authoritarian idea.

To be fair, the United States Constitution does not require that there be nine justices on the Supreme Court. The Judicial Act of 1789 initially set the number of justices at six. The number was raised to 10 in 1863. However, the Supreme Court has had nine justices since 1869 and the court has endured many shifts in power since that time.

The candidates pushing to add justices to the Supreme Court may well be reacting to the understandable anger of many Americans over Senate Majority Leader Mitch McConnell’s decision to block President Barack Obama’s Supreme Court nominee, Merrick Garland, by not even holding a hearing on his nomination.

Within about an hour of the late Justice Antonin Scalia’s death, McConnell had already decided the Senate should block any Supreme Court nomination by President Obama. McConnell later told Fox News that he was “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”

McConnell’s statement about the “longstanding tradition” was untrue. One only needs to go back to 1988 when the Senate confirmed President Ronald Reagan’s nominee, Anthony Kennedy, during that presidential election year. And there were more nominees confirmed by the Senate in presidential election years before Justice Kennedy.

The candidates are right to criticize McConnell over his nakedly political decision and failure to do what the Senate was supposed to do at the very least — hold a hearing on Garland’s nomination and vote on it.

But McConnell’s failure to do his job with regard to Merrick Garland does not justify packing the court.

Setting such a dangerous precedent would work both ways. It would work against Democrats when Republicans are in control of the executive and legislative branches of government and it would work against Republicans when the opposite is true.

Court packing would damage the separation of powers, weaken any meaningful judicial review, and threaten the institutional legitimacy of the court — concepts our founders believed in so strongly as being fundamentally necessary to our republic.

Casey Hoff is a criminal defense attorney based in Sheboygan.