What is Court Packing? Supreme Court Vacancy Revives Idea From FDR – The New York Times
The idea, recalling a plan by President Franklin D. Roosevelt, is increasingly popular among progressives, but faces roadblocks among members of both parties.
Astead W. Herndon and
The idea of expanding the Supreme Court has caught fire among some Democrats since the death of Justice Ruth Bader Ginsburg ignited a Washington power struggle that could drag on for months, long after the Senate votes on President Trump’s nominee to replace her.
As soon as it became clear that the Republican-controlled Senate would almost certainly confirm Judge Amy Coney Barrett, creating a 6-3 conservative majority on the court, progressive Democrats — including prominent figures like Representative Alexandria Ocasio-Cortez of New York — argued that if Democrats won in November, they should seriously consider increasing the number of justices.
Former Vice President Joseph R. Biden Jr., the Democratic presidential nominee, has long opposed that idea, known as court packing. But after Justice Ginsburg’s death, he went silent on the issue, declining to say if his position had changed.
Then, on Thursday, CBS News released excerpts from an interview in which Mr. Biden said he would establish a bipartisan commission to consider court reforms — a broad category that could include court packing but also a variety of other measures.
“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack,” Mr. Biden said in the interview, which is expected to air on “60 Minutes” on Sunday.
Expanding the court is an idea commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have broadened the Supreme Court from nine to as many as 15 justices. The history is more complicated than the usual narrative suggests: Mr. Roosevelt, aiming to push older justices to step down, wanted to add a justice to the court for each sitting justice who refused to retire after 70.
Today, Democrats characterize court expansion as a defensive move against Republican actions, not a unilateral power grab. In 2016, Senator Mitch McConnell, the majority leader, refused to hold a vote on Merrick Garland, who was nominated to the court by President Barack Obama after the death of Justice Antonin Scalia. Mr. McConnell held the seat open until after the inauguration of Mr. Trump, who nominated Justice Neil M. Gorsuch.
Many Democrats now say that Justice Gorsuch occupies a seat “stolen” by Republicans, which has shifted the ideological core of the court. Since Justice Ginsburg’s death, the outrage has intensified as Senate Republicans have committed to doing what they said was inappropriate in 2016: confirming a justice in an election year.
“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Senator Chuck Schumer, the Democratic leader, told his caucus on a phone call after Justice Ginsburg’s death.
His comments build on a movement to expand the Supreme Court that has been growing quietly within the party. During the presidential primary, several candidates expressed openness to the concept.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Senator Elizabeth Warren of Massachusetts in March 2019. “It’s a conversation that’s worth having.” At the October debate, Ms. Warren said, “people are talking about different options, and I think we may have to talk about them.”
Pete Buttigieg, the former mayor of South Bend, Ind., made the idea a linchpin of his early presidential campaign, before seeing more traction for embracing themes like generational change and attacking progressive proposals like “Medicare for all.”
By the end of the race, candidates across the ideological spectrum, including Senators Kamala Harris of California, Amy Klobuchar of Minnesota and Cory Booker of New Jersey, said court expansion should be explored.
Republicans have called the idea radical and undemocratic, and Mr. Biden rejected it last year, telling the website Iowa Starting Line, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
But in a sign of the rapidly changing political environment, Mr. Biden and some moderate Senate Democrats have begun to shift. Senator Chris Coons of Delaware, who previously opposed court packing, expressed openness to the idea this month.
Although the Supreme Court has consisted of nine justices for well over a century, the Constitution does not require that number, and Congress changed the size of the court several times between its establishment and the Civil War. That has not stopped Republicans from seeking to weaponize the growing calls for court expansion, particularly as they try to frame Mr. Biden as a political Trojan horse for the Democrats’ left wing.
Representative Jim Jordan of Ohio, a close ally of Mr. Trump, submitted a resolution to Congress last month that would formally limit the court to nine justices.
“Any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our nation’s highest court,” it reads.