Supreme Court Packing: Then and Now

A portrait of Franklin Delano Roosevelt, who proposed a “Court-packing plan” in 1937. (Courtesy of National Portrait Gallery.)
Amalie Hansch
December 17, 2020

A core principle of the United States government is the separation of powers. Fearful of a tyrannical government, the Founding Fathers established, through the Constitution, that Federal power would be divided among legislative, executive, and judicial branches. The Judicial branch includes nine Supreme Court Justices who have the role of ultimately interpreting the law on the nation’s highest court. Thus, in theory, the Supreme Court should not engage in partisan activity, and, theoretically, it should not matter whether an Associate Justice is a Republican or Democrat.

This ideal scenario is not the case, however, as America’s system of government has long featured a two-party system. With the recent death of Associate Justice Ruth Bader Ginsburg, much discussion revolved around whether a Democratic or Republican judge would succeed her. In response to Justice Amy Coney Barrett’s nomination and her recent confirmation to the Supreme Court, various Democratic leaders have advocated increasing the number of Supreme Court Justices, a change that has not been made since 1869. However, as many say, history repeats itself, for this is not the first time America has seen leaders aim to adjust the number of Supreme Court Justices for political advantage. Through a close examination of President Franklin Delano Roosevelt’s similar attempt to “pack” the Supreme Court, this issue can be better understood.

One might ask: what is “packing” the Supreme Court? According to the Constitution, the justices on this uppermost level of the judicial branch serve for life; for the last 151 years, Congress has set the size of the court at nine justices. This number is not, however, specified in the Constitution, but left to the discretion of the Congress. Before 1869, the number of justices fluctuated from five to ten, so there is no constitutional limit to the number of Supreme Court justices. Ultimately, by increasing (or decreasing) the number of justices who align with their particular party and its associated beliefs and policies, a President and Congress, if in agreement, can shape a Supreme Court to leverage an advantage over the opposing political party.

Why, then, for over 150 years, has no political party, through the power of Congress, adjusted the quantity of Supreme Court members to use the system to their advantage? The answer is complicated but can be better understood upon the consideration that “packing” the Court does not come without certain implications. In 1937, President Franklin Delano Roosevelt proposed what is commonly known as his “Court-packing plan.” FDR asked Congress (controlled by his own Democratic party) to pass a law declaring that for every Supreme Court justice who had served more than 10 years and was over the age of 70, an additional justice would be appointed. In short, FDR’s plan aimed to create as many as six more openings on the Supreme Court so he could appoint more Democrats to the Court and outnumber previous Republican appointees.

To give context, during Roosevelt’s presidency, he spearheaded sweeping legislation known as the “New Deal,” which consisted of progressive (some said unconstitutional) measures and policies aimed at mitigating the economic woes of the Great Depression. David B. Woolnerand, historian and author of The Last 100 Days: FDR at War and at Peace, asserts that during one particular period of Roosevelt’s presidency, “the [Supreme] Court struck down more pieces of legislation than at any other time in U.S. history,” which was at least partly due to the exceptionally high number of laws passed by Congress at the time. Evidently, the Supreme Court had become an obstacle in the way of Roosevelt’s “New Deal” goals. The President’s solution was to pack the Supreme Court, so in 1937, he proposed his “Court-packing plan” in hopes of appointing six more Supreme Court justices so that the Democrats would dominate the Court and pass his plans. Roosevelt tried to “sell” his plan as a “reform” and argued that adding more members would make the Court more efficient and bring in younger members. 

Despite Roosevelt’s popularity, public opposition to his plan came instantaneously. According to a Gallup poll in 1937, 53% of American adults did not favor FDR’s plan while 43% supported it. Some of the most influential figures who spoke against the plan were Supreme Court members themselves. Barbara Ann Perry, Director of Presidential Studies at the University of Virginia, remarks, “Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” and “…Chief Justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.” Franklyn Waltman, a Washington Post writer at the time, wrote, “Mr. Roosevelt’s real objective is to make the Supreme Court amenable to his will, either by forcing from that tribunal some of those who have disagreed with him or by permitting him to offset their votes with men of his own choosing.”1 Even John Nance Garner, Roosevelt’s Vice President, opposed the plan. Author Marian C. McKenna wrote that when the bill was read to the Senate, Garner could be seen “holding his nose with one hand and vigorously shaking his thumb down with the other.”

Americans chiefly worried that adding more members to the Court would be undemocratic and tyrannical, especially since the Supreme Court is not intended to be a battleground for opposing parties, but a branch of government with the responsibility to uphold the Constitution. Ultimately, Roosevelt’s Supreme Court-packing plan fell through when two Supreme Court justices of the original nine began voting in favor of his policies; the President thus gained some Court approval for more of his programs. This shift made the “Court-packing plan” unnecessary, and it died in the Senate. 

Although this event may seem to have no relation to modern politics, it is especially relevant today. In 2019, during an interview with The New York Times, Senator and Vice President-elect Kamala Harris (D-CA) was asked, “Are you open to expanding the size of the Supreme Court?” She responded with, “I’m absolutely open to it.” Similarly, in September, 2020, Senator Ed Markey (D-MA) remarked, on Twitter, that if President Trump filled the empty Ginsburg seat with a Republican justice, “we must abolish the filibuster and expand the Supreme Court.” These leaders argued that, if carried out, packing would be justified in light of Judge Amy Coney Barrett’s Supreme Court nomination, since the Republican Party’s majority in the Senate prevented Barack Obama’s Supreme Court nominee from being appointed as a Justice in 2016. In other words, many Democrats argued that if President Trump’s nominee was approved by the Senate and successfully appointed during his election year, while Obama’s nominee was not, they would be legitimized in encouraging the packing of the Court. In response, Republican voices have expressed that, although Trump succeeded in replacing a new member of the Supreme Court, adding new positions to sway the Court in the Democrats’ favor would be too extreme a measure and is not comparable to replacing a deceased justice. 

In recent months, both Vice President-elect Kamala Harris and former Senator, former Vice President, and President-elect Joe Biden have avoided any questions on packing the Court. During a local interview with a Wisconsin TV station in September, 2020, Biden was asked about the Democratic Party’s position concerning changing the number of Supreme Court members in its favor. Biden responded, “It’s a legitimate question. But let me tell you why I’m not going to answer that question: because it will shift all the focus.” According to Slate, on October 8, Biden remarked to a Bloomberg reporter that citizens will “know my opinion on court-packing when the election is over.” In October’s Vice Presidential debate between Vice President Pence and Senator Harris, Pence asked Harris if Biden and she intended to pack the Supreme Court if they won the election. Harris responded by shifting the topic. Pence retorted, “This is a classic case of if you can’t win by the rules, you’re going to change the rules.” In another interview from ABC Action News, when inquired if “the voters deserve to know” his perspective regarding packing, Biden voiced that voters had no right to know his views in stating, “No, I’m not going to play [Trump’s] game.” Biden then declared President Trump’s nomination of a replacement for Justice Ginsburg’s seat in the Supreme Court was a more pressing issue.

Many assumed that Biden’s and Harris’s recent refusal to answer questions concerning Supreme Court-packing implied that they do intend to pack the Court. This inference is supported by the 60 Minutes interview with Biden that took place in October, 2020, wherein, Biden stated that, if elected, he would hope to “reform the court system,” claiming that it was “out of whack.” Even so, in this interview, Biden continued to stay silent on his specific intentions for packing the Supreme Court. Ultimately, a clear assessment of Biden’s and Harris’s current opinion on the issue remains uncertain as Democratic leaders continue to dodge the question.

Will attempting to pack the Court have the same negative implications today that it did in 1937? Democratic leaders have already shown adamant support for court-packing, but are their actions justified? As of these past few months, the Supreme Court has, again, become a battleground for the Democratic and Republican parties. The U.S. government’s premier court, designed and intended to uphold the Constitution and be independent of partisan activity, seems to have become a weapon in a political power struggle between parties. Some then argue that, by packing the Supreme Court, the Constitution’s separation of powers will be further disregarded, along with the intentions of our founders, and the Court will be treated not as a setting for the apolitical adjudication of law but as a tool to be used to serve a party’s aims. Others, however, insist that packing the court is a necessary measure that will approve new laws they deem imperative. Although the definite outcome of the 2020 Presidential Election remains possibly uncertain, in light of the formal acknowledgment of Joe Biden’s victory by the Electoral College, this issue is likely to become contentious in time.

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