Opinion: Court Packing Is A Non-Starter

With both houses of Congress and the presidency in Democratic hands, court-packing is the soup du jour. But there is no principled reason to add any number of justices to the United States Supreme Court–much less the nearly fifty percent increase being kicked about–and, at the end of the day, the liberals know it.

On April 9, President Biden issued an executive order establishing a Presidential Commission on the Supreme Court of the United States. This bipartisan commission is tasked with authoring a report including “[a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals” within 180 days.

Packing the United States Supreme Court with additional justices is currently at the top of the wish list of every liberal-leaning judicial advocacy group and certain to be among the “reform proposals” considered by the Presidential Commission. But that reform proposal should be dead on arrival.

To be sure, the Constitution does not specify how many justices should sit on the Supreme Court. That number has varied over time, from five to ten, but remained at nine since 1869. Why the sudden urgency to add four more justices?

Politics. The Supreme Court now has a 6-3 majority of justices appointed by Republican Presidents. Thus, various democrats have introduced court-packing legislation specifically to get rid of “the far-right majority” on the Supreme Court. Democrats want more justices in order to change outcomes on the Supreme Court.

But this notion of the Supreme Court as a super-legislature is antithetical to the constitutional design and an assault on judicial independence. Federal judges are given life tenure precisely so that they are insulated from political pressure. This is why the late Justice Ruth Bader Ginsburg called court-packing a “bad idea.” “If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ”

Senator Ed Markey’s claim that additional justices are necessary because Republicans “stole” the Court’s majority is also nonsense. The confirmation of each of the current justices was unquestionably constitutional.

Markey would do well to heed Justice Stephen Breyer’s recent warning that packing the court would “erod[e]” the public’s trust in the Supreme Court–“a trust that the court is guided by legal principle, not politics.” Thus, advocates of court-packing should “think long and hard before they embody those changes in law.”

The fact that there were once nine circuit courts of appeals and now there are thirteen is equally unpersuasive. The number of circuits mattered back in the day when the Supreme Court justices rode circuit — traveling by horse and stagecoach to hear cases in their assigned circuit. Today, justices do not ride circuit and there is no reason the number of justices should be keyed to the number of circuit courts.

What about the workload? Isn’t the Supreme Court overwhelmed? Hardly. The Supreme Court today issues opinions in fewer cases than at most any time in its history —  all while having more help.

And packing the court might lead to an arms race. Why stop at thirteen? When Republicans are next in power, they could change the number to 15, 17, or 30. This is why then-candidate Biden said: “I’m not prepared to … pack the court, because we’ll live to rue that day.”

There is simply no principled reason to increase the number of justices from nine to thirteen. If there really were a need for additional Supreme Court justices, the logical thing to do would be to stagger those justices over different presidential terms, perhaps one justice appointed every four years so that it is clear this is really about structural reform, not to take advantage of one political and partisan moment.

But, of course, staggering would undermine the current “reformers” goal of packing the court with justices who will rule a certain way, so that approach is unlikely to be on the table.

Given all this, it is hardly surprising that everyone from Justices Ginsburg and Breyer to then-candidate Biden have been against packing the Supreme Court. In fact, the bipartisan Commission might be a way to simply bury the court-packing notion. One can hope.

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