Ahead of the Senate Judiciary Committee hearings for the nomination of Judge Amy Coney Barrett to the Supreme Court, which began this week, the term court packing has been thrown around by politicians on both the left and right. But with all the hype surrounding the term, there seems to be a great deal of misunderstanding about it.

What’s court packing?

Court packing stems from the Judicial Procedures Reform Bill of 1937 proposed by President Franklin Roosevelt. The legislation sought to expand the Supreme Court to include as many as 15 justices, a plan introduced following the Court’s striking down of parts of Roosevelt’s New Deal. 

Some have argued that the move was motivated by the fact that multiple justices were above 70 years old, and Roosevelt wanted to introduce younger blood into the Court; the ultimate goal, these people charge, was to encourage the older justices to retire–not to serve Roosevelt’s political interests. However, the link between the striking down of parts of the New Deal and this court-packing plan cannot be denied either.

Regardless of the intention, though, court packing means adding more than nine justices to the Supreme Court, potentially to serve the political interests of the president and/or legislators who appoint them.

What court packing is not

Clarifying what court packing is not seems to be very necessary, given the falsehoods politicians have been spouting for the last few weeks. Let’s get into specifics.

When asked about court packing in the vice presidential debate, Senator Kamala Harris asserted that Republicans under Trump had spent four years “packing the court” with white judges. This is an improper use of the term and, therefore, is false. Harris can disagree with Trump’s choices for the seats, but she can not say that nominating people for open seats is court packing. (It is also worth noting that, in the same exchange, Harris gave a “little history lesson” about filling seats on the Court that was untrue).

Presidential candidate Joe Biden (and many within his party) claimed that Republicans are “packing the court now.” Presumably, Biden and those like him mean that Trump’s nomination of Judge Amy Coney Barrett, along with the nominations (and confirmations) of Justices Gorsuch and Kavanaugh is an attempt to “pack the court” with originalist-minded justices. However, this, too, is an improper definition of court packing and, therefore, is false. Filling vacancies on the Court is not court packing; it is a constitutional duty of the President.

To fill vacancies on the Court is not to partake in court packing. Court packing, as inconvenient as some may find it, has a specific meaning. And it’s not nominating individuals for open seats.

Why is it a big deal?

Though the number of Supreme Court Justices has changed several times in the country’s history, the Court has maintained nine justices since 1869. The Court is also intended to remain nonpartisan, ruling not based on preference but on interpretation of the law of the land, our Constitution. The Supreme Court website explains:

“As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”

Further, the Supreme Court website, paraphrasing Founding Father James Madison, decries the interference of partisan ties, saying, “constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.”

The Supreme Court is not a partisan body; it was designed to be an apolitical branch of government that serves to interpret the law as written.

In light of this, court packing undermines the purpose and goals of the Supreme Court.

The constitution does not state a specific number of justices to the Supreme Court (as told by the fluctuating number in the country’s early history); expanding the Court is not unconstitutional. However, the Supreme Court has functioned with nine justices for 150-plus years. To wield the court-packing weapon as a means of expressing political disagreement is an affront to the nonpartisan intent of the Court, and a dismantling of the Court as this country has known it in all of modern history.

Former Fox News host, lawyer, and journalist Megyn Kelly put it this way on her podcast: “[if we] add three justices to the Supreme Court, the Supreme Court is done. It will be over as a credible institution in the United States. You’re basically talking about rendering ineffective the leading court in the third branch of the federal government. It’s a huge deal.”

But Democrats have remained, at best, ambiguous on their stance on court packing. Many refuse to disclose their stance (though some have outright supported it). In fact, Biden charged that voters “don’t deserve” to know whether he will pack the Court. He also said that voters will find out where he stands on this issue after the election.

I’ll put it this way: a candidate for President of the United States thinks voters don’t deserve to know where he stands on fundamentally changing one of the three branches of government but expects them to vote for him anyway. Because, you know, he’ll tell us later.

Final thoughts

Packing the court would allow politicians to use the Court for their own political ends. Appointing additional justices for the sake of satisfying the political interests and philosophies of elected officials subverts the nonpartisan design of the Court and encourages a Court that is subject to “the tumult and conflict of the political process.” 

We need to know where our officials stand on this issue. Not where they stand on filling vacancies, and not where they stand on appointing people of color to the bench. We need to know where they stand on expanding our Supreme Court beyond nine justices. And while I’m not sure we’ll get a straight answer, I think that in itself is an answer.

Liana I.
FFL Cabinet
Liana is a follower of Christ and current communications student at Fairleigh Dickinson University. She enjoys writing, reading, and serving others.

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