Us Supreme Court Packing – Peak 2 Pros and Cons

Pro/Con Arguments | Discussion Questions | Take Activeness | Sources | More Debates

The Us Supreme Court building.
Source: Joe Ravi, "Panorama of the Due west Facade of United states Supreme Court Edifice at Dusk in Washington, D.C., Us," CC-BY-SA 3.0, wikimedia.org, Oct. x, 2011

Court packing is increasing the number of seats on a court to alter the ideological makeup of the courtroom. [one] The The states Constitution does not dictate the number of justices on the Supreme Court, but states only: "The judicial Ability of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and institute. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Beliefs, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Function." [two]

The number of justices on the Court, set at nine since the mid-19th century, has changed over the years. The court was founded in 1789 with half dozen justices, but was reduced to v in 1801 and increased to six in 1802, followed by modest changes over the subsequent 67 years. [14] [15] As explained in Encyclopaedia Britannica, "In 1807 a seventh justice was added, followed by an eighth and a ninth in 1837 and a tenth in 1863. The size of the court has sometimes been subject to political manipulation; for instance, in 1866 Congress provided for the gradual reduction (through attrition) of the court to vii justices to ensure that President Andrew Johnson, whom the Firm of Representatives afterward impeached and the Senate but narrowly acquitted, could not appoint a new justice. The number of justices reached eight before Congress, later on Johnson had left office, adopted new legislation (1869) setting the number at 9, where information technology has remained ever since." [3]

The idea of court packing dates to 1937 when President Franklin D. Roosevelt proposed calculation a new justice to the Supreme Courtroom for every justice who refused to retire at lxx years old, up to a maximum of 15 justices. The attempt is oftentimes framed every bit a battle between "an entrenched, reactionary Supreme Court, which overturned a slew of Roosevelt's New Deal economical reforms, against a hubristic president willing to accept the unprecedented step of asking Congress to appoint six new, and sympathetic, justices to the bench," co-ordinate to Cicero Institute Senior Policy Counselor Judge Glock, PhD. Roosevelt's proposal was seen by many as a naked power grab for control of a 2d branch of regime. Plus, as Glock points out, a and so new police force reducing Supreme Court pensions was preventing retirements at the very time Roosevelt was calling for them. [four] [5] [6]

The contemporary fence has been heavily influenced by events following the Feb. xiii, 2016, expiry of conservative Associate Justice Antonin Scalia. Citing the upcoming 2016 election, Senate Majority Leader Mitch McConnell (R-KY) refused to consider President Barack Obama'south liberal Supreme Court nominee, Merrick Garland. At the time, there were 342 days remaining in Obama'south presidency, 237 days until the 2016 election, and neither the 2016 Democratic nor Republican nominee had been chosen. Because the Senate blessing process was delayed until 2017, the side by side president, Donald Trump, was allowed to appoint a new justice (conservative Neil Gorsuch) to what many Democrats called a "stolen seat" that should have been filled by Obama. [5] [7]

The court packing fence was reinvigorated in 2019 with the appointment of conservative Associate Justice Brett Kavanaugh by President Trump after liberal-leaning swing vote Associate Justice Anthony Kennedy retired in July 2018. [1] In the wake of this appointment, Due south Bend, Indiana, Mayor Pete Buttigieg, then besides a 2020 presidential candidate, suggested expanding the court to 15 justices in the Oct. 15, 2019, Democratic presidential debate. [8]

Then largely brushed aside every bit "radical," the topic resurfaced once once again upon the decease of liberal stalwart Associate Justice Ruth Bader Ginsburg on Sep. 18, 2020. Liberals, and some conservatives, argued that the 2016 precedent should be followed and that Justice Ginsburg's seat should remain empty until afterwards the 2020 presidential election or the Jan. 2021 presidential inauguration. However, McConnell and the Republicans in command of the Senate, and thus the approving process, indicated they would move forward with a Trump nomination without delay. McConnell dedicated these deportment by stating the President and the Senate are of the same political party (which was not the case in 2016, negating—from his perspective—that incident as a precedent that needed following), and thus the country had confirmed Republican rule. [5] [7] [9]

Others argued as well that, since there was a chance that the results of the 2020 ballot could be challenged in the courts, and peradventure even at the Supreme Courtroom level (due to concerns over the handling of mailed-in ballots), information technology was critical for an odd number of justices to sit down on the Courtroom (for an even number, such as 8, could mean a split iv-four decision on the disquisitional question of who would be deemed the next U.S. president, sending the land into a ramble crisis). At the time of McConnell's Sept. eighteen proclamation via Twitter, there were 124 days left in Trump's term and 45 days until the 2020 ballot. Some called the impending nomination to replace Ginsburg and the 2016/2017 events a version of court packing by Republicans. [v] [7] [9]

Supreme Court nominees tin can be confirmed past the US Senate with a simple majority vote, with the Vice President called in to break a 50-50 tie. Amy Coney Barrett was confirmed by the Senate on Oct. 26, 2020 with a 52-48 vote to replace Justice Ginsburg, eight days before the 2020 ballot. [7] [24]

Should Packing the US Supreme Court Always Exist Considered?

Pro 1

The Supreme Court is politically partisan and ideologically imbalanced. Calculation justices would ensure that it never reflects merely one party'due south political agenda.

Of the last 19 Supreme Courtroom Justices, Republicans accept appointed 15, or 79%. [10] Every bit of Sep. 22, 2020, with the decease of Associate Justice Ginsburg, the courtroom has five conservative justices and three liberal justices. [11]

Because Trump filled a seat that historical precedent says should have been filled by Obama, a third Trump appointee to fill up Ginsburg's seat further imbalances the courtroom. When this sort of imbalance exists, court packing should be considered.

Leah Greenberg and Ezra Levin, progressive political organizers, argued, "We absolutely have to address the correct-wing imbalance of the current courtroom right at present [Sep. nineteen, 2020]… At that place's no way to rebalance the court without expanding information technology." [10]

Ian Millhiser, JD, Senior Fellow at the Middle for American Progress and Editor of Think Progress Justice, explains the danger of a partisan court: "a rigidly partisan Supreme Court risks radicalizing the electorate confronting democracy itself" and, thus, "[t]he example for court-packing is clear, and the class of action is obvious, if the Supreme Court tries to rig elections so that simply Republicans can win nationally." [1]

A bourgeois court could ensure Republican domination past ruling on matters like voting rights, substantially disallowing voting past majority Democrat groups like black voters, with voter ID, felon voting, and other disenfranchising laws. [i]

Co-ordinate to Sam Berger, JD, Vice President, Democracy and Regime Reform at Center for American Progress, Republicans have engaged in court packing that demands a Autonomous response: "If allowed to stand, bourgeois court packing will have real consequences for a generation or more than. Conservative judicial ideologues can limit rigorous campaign finance reform; identify a judicial stamp of approval on anti-democratic gerrymandering and voter suppression; undermine unions; and gut reproductive rights. They can also undermine future efforts at progressive reform through specious legal claims—and one time the Supreme Court has ruled something unconstitutional, it can shut down policymaking in that infinite completely." [12]

While the 2020 courtroom packing debate is near a majority conservative Supreme Court, the political spectrum could hands be flipped, with conservatives fearing the loss of their ethics. The makeup of the Supreme Court should non reverberate partisan politics, but should, instead, reflect the will of the people and be beholden but to the United states of america Constitution.

Read More than

Pro 2

Historical precedent allows for more than nine Supreme Courtroom Justices, and there are no laws against having more than nine.

The United states of america Constitution does not specify the number of justices on the Supreme Court. [1] [2]

As the Supreme Courtroom FAQs folio notes, "The Constitution places the power to determine the number of Justices in the easily of Congress. The showtime Judiciary Act, passed in 1789, set the number of Justices at six, i Chief Justice and five Assembly. Over the years Congress has passed various acts to alter this number, fluctuating from a low of 5 to a loftier of ten. The Judiciary Deed of 1869 fixed the number of Justices at 9 and no subsequent modify to the number of Justices has occurred." [13]

Originally, at that place were half dozen justices (1789), the number was reduced to five in 1801, increased to six in 1802, seven in 1807, to nine in 1837, and to 10 in 1863, earlier shrinking to seven in 1866, and rising once again to ix in 1869. President Franklin Delano Roosevelt asked Congress to increment the number to up to 15 in 1937, just Congress did non concur. [xiv] [xv]

Ultimately, the number of Supreme Court justices is arbitrary, easily revised by Congress, and ripe for modify. Court packing could signal a new era of non-partisanship in the Supreme Court.

Read More

Con 1

The Supreme Courtroom is largely balanced. Court packing would increase political interference in an independent branch of government. It'due south a slippery slope that would allow each president to add together justices for rank political reasons.

The appointment of justices is mostly balanced historically. Since 1912, when the two major political parties settled into their current ideologies, 52 justices accept been appointed: 28 by 10 Republican presidents and 24 by seven Democratic presidents.

Michael H. McGinley, JD, lawyer and onetime Supreme Court law clerk for Justice Alito, argued that packing the courtroom would threaten the "rule of law and judicial independence." He reasoned, "While the press tends to focus on the small handful of 5-4 decisions in high-profile cases, the justices more than often find themselves in wide agreement on the almost difficult legal issues of the twenty-four hours. And when there are disagreements, they are based on legitimate and reasonable differences of opinion well-nigh the law, not the justices' personal policy preferences." [xvi]

Erin Hawely, JD, Acquaintance Professor of Law and former police force clerk to Master Justice John Roberts, and Heather Higgins, CEO of Independent Women's voice, noted, "The argument about balance implies that the terms conservative and liberal utilize to judges but like they do to political parties, even though those words take very different meanings and application when information technology comes to judicial philosophy." [17]

Fifty-fifty Vice President Joe Biden, 2020 Democratic presidential nominee, is wary of court packing, stating in 2019, "No, I'yard non prepared to proceed and try to pack the courtroom, because we'll live to rue that solar day." He later elaborated, "We add together three justices. Next time around, we lose command, they add three justices. Nosotros begin to lose any credibility the court has at all." [18] [19]

As Washington Mail service reporter Amber Phillips explained, courtroom packing can be seen as "a maneuver that could come back to haunt Democrats when they're out of power. What'south to end a Republican president and Republican Congress from expanding information technology even more than, to go what they want? That was a feature of the Reconstruction era." [20]

Plus, the Supreme Court is fiercely independent, undercutting a simplistic view of its partisan leanings. Of the 67 decisions in 2019, the 4 Democrat-appointed judges voted together 51 times and the five Republican-appointees 37 times. Only seven cases had the expected political separate. [21]

The Supreme Court should not exist subjected to the rank political machinations at the heart of court packing.

Read More than

Con 2

Historical precedent most strongly supports a nine-judge Supreme Courtroom.

While the Usa Constitution does not specify the number of Supreme Court justices, neither does it specify that justices must have constabulary degrees or have served as judges. [thirteen]

However, historical precedent has set basic job requirements for the position besides as solidified the number of justices. The Supreme Courtroom has had nine justices consistently since 1868, when Ulysses S. Grant was president. [14]

Changing the number of justices has been linked to political conniving, whether the 1866 shrinkage to prevent Johnson appointments or the 1801 removal of one seat past President John Adams to prevent incoming President Thomas Jefferson from filling a seat or the 1937 attempt by Roosevelt to get the New Bargain by the courtroom. [22] We should not break with over 150 years of historical precedent to play political games with the Supreme Court.

Jeff Greenfield, journalist, warns that breaking with precedent would cause problem, stating, "if Congress pushes through a restructuring of the court on a strictly partisan vote, giving Americans a Supreme Courtroom that looks unlike anything they grew upwards with, and unlike the institution we've had for more than than 240 years, information technology's hard to imagine the country equally a whole would meet its decisions as legitimate." [23]

Read More

Electric current US Supreme Courtroom Justices

Proper noun Championship Engagement Justice Took
SCOTUS Seat 		Appointing President
i. Clarence Thomas Associate Justice Oct 23, 1991 George H.W. Bush
two.* Stephen G. Breyer* Acquaintance Justice* Baronial three, 1994* Nib Clinton*
3 John G. Roberts, Jr. Chief Justice of the United States September 29, 2005 George Westward. Bush
4. Samuel A. Alito, Jr. Associate Justice January 31, 2006 George W. Bush
5. Sonia Sotomayor Associate Justice Baronial 8, 2009 Barack Obama
6. Elena Kagan Acquaintance Justice August 7, 2010 Barack Obama
7. Neil M. Gorsuch Associate Justice Apr 10, 2017 Donald Trump
viii. Brett M. Kavanaugh Associate Justice October vi, 2018 Donald Trump
9. Amy Coney Barrett Associate Justice October 27, 2020 Donald Trump
* Ketanji Brown Jackson Associate Justice To be determined, contingent
on date of Justice Breyer's
retirement		 Joe Biden

Discussion Questions

1. Should packing the United states Supreme Court ever exist considered? Why or why non?

ii. Does the current method of waiting until a Justice retires or dies and allowing the electric current president to appoint a new Justice work? Why or why not?

3. Begin and research what the ideal Supreme Court might look like and how to achieve that platonic. Consider how many justices, the nomination and approval process, term limits, and other ideas. Make sure to support your opinions and argue why this court would be the best.

Take Action

one. Explore Ian Millhiser'due south idea that not packing the court is dangerous.

two. Consider the "past, present, and future" of court packing at SCOTUSblog.

3. Analyze the Pacific Legal Foundation's argument that courtroom packing is dangerous.

four. Consider how you lot felt near the effect earlier reading this commodity. Afterwards reading the pros and cons on this topic, has your thinking changed? If then, how? List two to iii ways. If your thoughts accept not changed, list two to three means your meliorate understanding of the "other side of the issue" now helps y'all amend argue your position.

5. Push for the position and policies you back up by writing Us national senators and representatives.

Sources

1. Ian Millhiser, "Let'due south Think nigh Court-Packing," democracyjournal.com, Winter 2019
2. Legal Data Establish of Cornell Constabulary School, "U.Due south. Constitution, Article III,"  law.cornell.edu (accessed Sep. 22, 2020)
3. Brian Southward. Smentkowski, "Supreme Court of the U.s.," Britannica.com, Sep. xiii, 2019
4. Estimate Glock, "The Lost History of FDR's Courtroom-Packing Scandal," politico.com, February. 24, 2019
5. Maggie Astor, "Ruth Bader Ginsburg'due south Death Revives Talk of Court Packing," nytimes.com, Sep. 19, 2020
half-dozen. William Eastward. Leuchtenburg, "When Franklin Roosevelt Clashed with the Supreme Courtroom – And Lost," smithsonianmag.com, May 2005
vii. Abigail Covington, "Can a Supreme Court Justice Exist Replaced in an Ballot Year?," esquire.com, Sep. 20, 2020
8. Harper Neidig, "Buttigieg Defends Court-Packing Proposal at Democratic Contend," thehill.com, Oct. 15, 2019
nine. Mitch McConnell, twitter.com, Sep. 18, 2020
10. Leah Greenberg and Ezra Levin, "Should the size of the Supreme Courtroom expand to change the ideological rest? | Pro/Con," inquirer.com, Sep. nineteen, 2020
11. Axios, "The Political Leanings of the Supreme Court Justices," axios.com, June 1, 2019
12. Sam Berger, "Conservative Court Packing," americanprogress.org, Apr. 3, 2019
13. Supreme Court of the U.s.a., "FAQs - General Information," supremecourt.gov (accessed Sep. 22, 2020)
14. Elizabeth Naught, "7 Things Yous Might Not Know about the U.S. Supreme Court," history.com, Oct. 8, 2013
15. National Constitution Middle Staff, "Why Does the Supreme Court Have Nine Justices," constitutioncenter.org, July half-dozen, 2018
16. Michael H. McGinley, "Should the Size of the Supreme Court Aggrandize to Alter the Ideological Residual? | Pro/Con," inquirer.com, Sep. nineteen, 2020
17. Erin Hawley and Heather Higgins, "A 'Balanced' Supreme Court Isn't the Point," washingtonexaminer.com, July 9, 2018
xviii. Pat Rynard, "Joe Biden Interview: 'Talk about the Future' in Dem Principal," iowastartingline.com, July 5, 2019
19. Matthew S. Schwartz, "If Republicans Confirm New Justice, Scholars Say Democratic Court Packing Is Possible," npr.org, Sep. 20, 2020
twenty. Bister Phillips, "What Is Court Packing, and Why Are Some Democrats Seriously Considering It?," washingtonpost.com, Sep. 22, 2020
21. Ilya Shapiro, "Liberal Supreme Court Justices Vote in Lockstep, Non the Conservative Justices," usatoday.com, Sep. x, 2019
22. Tyler Olson, "How Would Courtroom Packing Work?," foxnews.com, Sep. 22, 2020
23. Jeff Greenfield, "How Democrats Could Pack the Supreme Court in 2021," politician.com, Sep. 19, 2020
24. US Senate, "Supreme Court Nominations (1789-Present)," senate.gov (accessed Jan. 20, 2022)

More Government Debates

Should Washington, DC, and Puerto Rico Be Granted US Statehood? – Proponents say DC and Puerto Rico residents are treated like 2nd-class citizens. Opponents say neither was always intended to be a United states state.

Should the US Go Socialist? – Proponents say the US already has many successful and popular socialist policies. Opponents say the U.s.a. already has likewise many costly socialist entitlements.

Should the Voting Historic period Be Lowered to sixteen? – Proponents say teens are knowledgeable enough to vote. Opponents say kids aren't mature enough to vote.