The last time someone tried to do this, it did not end well.
In 1936 President Franklin Roosevelt won re-election by a landslide, winning all but Maine and Vermont. He was immensely popular and enjoyed unimaginable 75% majorities in both the Senate and House. Frustrated by conservative justices on the Court— known as “The Four Horseman”— blocking his New Deal programs, he moved to “pack the court” by adding six justices to the existing nine for a total of fifteen. It would likely ensure a majority that would bless his programs instead of, as he believed, reflexively denying the American people the benefit of the New Deal at every turn.
VIDEO, Washington Post: How to Fix the Supreme Court Without Packing It
But it was not enough for FDR to prevail. Congress chastened the 32nd president by shooting down the Judicial Reforms Bill of 1937. Chief Justice Charles Evans Hughes took the unusual step of publicly advocating against the bill. Even his own Vice President opposed it.
Now, to be sure, there is nothing in the Constitution that mandates that the Supreme Court consists of nine justices. It has ranged from six to ten in its history. The Judiciary Act of 1869 set the number of Supreme Court justices at nine. But a new law could modify that.
But several Democrats running for president have not sidestepped the issue. Paul Waldman’s 3.18.19 article in The Washington Post outlines why that’s the case:
“There is one and only one reason why we’re discussing this at all: Merrick Garland. It's been three years since Antonin Scalia died and President Barack Obama, looking for a justice Republicans would have a hard time objecting to, chose Garland, a mild-mannered moderate whom some Republican senators had praised in the past. Sen. Orrin Hatch had called Garland "a consensus nominee," promising that "I will do my best to help him get" confirmation votes.
But Majority Leader Mitch McConnell, with the support of almost every Republican (including Hatch), simply refused to allow Garland either a hearing or a vote. True to his bottomless cynicism, McConnell calls his decision to hold open the seat until it could be filled by a Republican president one of the proudest moments of his career.
It was one of the most despicable official acts either party has undertaken in decades. And while McConnell still no doubt giggles in joy every time he thinks of it, it continues to fill Democrats with rage.
In order to rebalance the scales, many believe, the next Democratic president should be given two extra seats to fill, because, had Garland been seated, there would have been a 5-to-4 liberal majority, and instead there’s a 5-to-4 conservative majority.
Buttigeieg says “I don’t think we should be laughing at it,” he said. “In some ways it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.” But Buttegieg warns against merely adding members to satisfy Democrats anger.
“Think about the trajectory of the Supreme Court is on. It’s being regarded as a nakedly political institution. The question is, how do we structure it so it’s not going to be an apocalyptic battle every time there is a vacancy. (I would expand it) if there was in a way to de-politicize it.”
—Democratic Presidential candidate Pete Buttigieg
Presidential candidate Beto O’Rourke has also floated the idea of increasing the Court’s size: “What if there were five justices selected by Democrats, five justices selected by Republicans and those 10 then pick five more justices independent of those who picked the first 10,” O'Rourke said. “I think that’s an idea we should explore.” As Ilya Somin writing recently in Reason notes “Kamala Harris, Elizabeth Warren, Kirsten Gillibrand, and former Obama administration attorney General Eric Holder also argue that the idea should be ‘seriously’ considered.”
Conservative media is aghast with such notions, but even the leader in the Democratic field— Bernie Sanders— thinks it’s a bad idea.
“My worry is the next time Republicans are in power they will do the same thing. That is not the ultimate solution. What I do think may make sense is if not term limits, rotating judges to the appeals court,” Sanders said at a recent Democratic forum
Even historically liberal legal minds provide caution:
“I’m not in favor of trying what FDR sought to do — and was rebuffed by the Democratic Senate for attempting…. Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.” Harvard Law Professor Laurence Tribe
Tribe also believes “proponents of partisan Court-packing haven’t proposed a realistic way of handling the transition to a 15-Justice Court.” Presidential Candidate Cory Booker (D-N.J.) says “I’m open to these kind of conversations, but I really caution people about doing things that become a tit for tat throughout history…. So when the Democrats expand it to 11, 12 judges, when Republicans have it, they expand it to 15 judges.”
One thing is for certain: where Republican candidates and political discussion in cycles past focused more intently on Supreme Court picks than their counterparts— expect the issue to be a primary factor in the upcoming 2020 Democratic Presidential candidate debates.
Christopher Naughton is the Host and Executive Producer of The American Law Journal. On the air since 1990, the Emmy award-winning program examines consumer, business and Constitutional law issues.