Packing the Supreme Court: Will the Passing of RBG Lead to an End of the Nine?
With the death of liberal and feminist icon Ruth Bader Ginsberg just weeks before the Presidential Election, the Supreme Court is taking center stage in the media. President Trump wasted no time in selecting a judge to fill the empty seat. Liberals across the nation are struggling to come to terms with the likely six-to-three conservative majority on the Court. Many suspect abortion rights and the Affordable Care Act are in jeopardy, as well as attempts at gun control and other liberal-supported policies.
If Vice President Joe Biden wins in November and Democrats take control of Congress, there is one move that could change the Court: Democrats could increase the number of Justices. The United States Constitution does not state that there must be nine Justices, and the move to expand the Court to thirteen justices is legally conceivable.
The possibility offers hope to those who are now devastated by Justice Ginsberg’s death and the prospect of a conservative-leaning court that could endure for decades. But what would need to happen for Democrats to add more seats? And even if they could increase the number of Justices, should they?
The History of the Supreme Court
The first Supreme Court included six justices. The Judiciary Act of 1789 established the six-justice Court, but it did not take long for the numbers to change in the wake of political gaming. In 1801, then-President John Adams, along with a Federalist majority in Congress, lowered the number of Justices to five shortly before Thomas Jefferson took office. The move, which Adams hoped would limit Jefferson’s power, did not last long. Jefferson restored the Court to six justices, and later, in 1807, added a seventh seat.
Thirty years later, President Andrew Jackson increased the number of justices to nine. For a brief period during the Civil War, ten justices sat on the High Court. In 1866, Congress reduced the seats again to seven and three years later, increased the Court back to nine, and stated that there must be at least six justices on the Court to make a quorum. While politicians offer the suggestion or threat to add members to the Court from time to time, the nine-judge panel has been in place since 1869.
While adding justices might seem extreme and appear to fly in the face of more than 150 years of history, the Constitution grants Congress the authority to establish the courts. That authority includes the right to add or eliminate seats in the Supreme Court.
How Would Congress Add Seats to the Supreme Court?
Congress has authority, granted in the Constitution, to decide how many justices sit on the Supreme Court. If Democrats take a majority of seats in Congress and take over the Oval Office, many legal scholars believe that they will add seats to the Court. Hypothetically, after Democrats propose a bill to add seats, the House of Representatives would vote on the new legislation. If the bill passed, the Senate would then vote on the proposed bill. If the Senate passed the bill, the President would have ten days to either veto or sign the legislation into law. At that point, the President could then select Justices to fill the newly created vacancies. In this case, the number would likely be thirteen, which would allow for four new Justices and would entirely remake the Court with a presumably liberal majority.
The ability to carry out the effort will require that Democrats win big in the 2020 elections.
What are the Arguments For and Against Court-Packing?
In the past, Vice President Biden has spoken out to say that he is not in favor of court-packing. The number one reason is that if Democrats add seats in 2020, nothing stops a later Republican move to take the same steps and increase the number of seats yet again. The result is a court that will likely lose much of its legitimacy with the public. A Supreme Court without legitimacy is hardly an effective one.
However, the situation is now different in the eyes of many Democrats. In 2016, Senator Mitch McConnell led the blocking of the confirmation of President Obama’s nominee, Merrick Garland, claiming that no seats should be filled in an election year, although the election was nearly eight months away. Four years later, McConnell rushed to fill the seat of Ruth Bader Ginsburg even with an election looming on the horizon in little more than a month. Many in the Democratic party now argue that the Republican hypocrisy leaves the left with only drastic options. Despite the risks to the institution and the possibility of retaliation, some members of the House and the Senate are speaking out to say they support adding Supreme Court seats.
After all, with justices serving a life-term, the makeup of the Court can influence the law for generations.
Are There Other Options?
Many legal scholars argue that the Court should have term limits. Such a modification would undoubtedly take some of the weight away from the appointment of new justices, such as President Trump’s 48-year-old nominee. If Amy Coney Barrett is lucky enough to sit on the Court until the same age as the late Justice Ginsburg, she could be deciding cases until roughly 2059. Based on some predictions, the would-be Justice may be deciding cases related to a well-established Mars colony within her tenure on the Court.
With term staggering, it would be possible to allow for seats to open on an almost regular basis every two years (with the chance of some early departures for illness, death, or other unexpected factors). Arguably, this process would make for less hotly-contested appointments.
And Then There Were Thirteen, or Fifteen, or…
We do not yet know what the outcome of the 2020 election will bring, and all speculations will prove pointless if Democrats fail to obtain the majority that they would need to make drastic changes to the Court.
Since we are theorizing about radical moves to increase the number of Justices, one might wonder, why should the Democrats stop at thirteen? The granting of Ruth Bader Ginsburg’s final wish that the next President, presumably not Trump, fill her seat looks unlikely. But perhaps Democrats can grant, albeit imperfectly, an earlier dream of the late Justice. By increasing the number of seats to fifteen, Democrats could appoint six women to the Court, to a total of nine female justices. After all, when asked when there would be enough women on the Court, Justice Ginsburg famously replied, “when there are nine.”
