Since the passing of Ruth Bader Ginsburg and confirmation of Amy Coney Barrett, public opinion has been polarized on the topic of the Supreme Court. Republicans’ two-faced approach to confirming justices has led many on the left to call for an extension of the Supreme Court. There have been a few bipartisan bills introduced in the Senate over the last decade to reform the Supreme Court. These proposals would have introduced limits on tenure, limits on the amount of justices a president can nominate per term, and even a reform in which there would be three outwardly partisan nominees per party and then the other three justices would be chosen with a yearly lottery that picks from the Federal Appellate Court system. Those are all good ideas, with the intention of introducing fairness and objectivity back into the court. Packing the court will do the opposite.
The only reason FDR wanted to pack the Supreme Court was so he could insert partisan justices to effect his preferred policy.
Packing a nine-justice Supreme Court was first proposed by President Franklin D. Roosevelt in 1937. The Judicial Procedures Reform Bill was an initiative FDR undertook after many of his New Deal statutes had been shot down by the Supreme Court. To be clear: the only reason FDR wanted to pack the Supreme Court was so he could insert partisan justices to effect his preferred policy. The New Deal was a popular set of proposals, but even the citizens of the 1930s recognized that packing the Supreme Court in order to pass those laws was incredibly dangerous. As is evident by the fact that there are still only nine justices on the bench, FDR did not pack the court.
Our nation’s forefathers considered the Supreme Court the least dangerous branch of the tri-part system they created. As Alexander Hamilton noted, the highest court in the land had “neither sword nor purse strings.” This is a metaphorical way of saying that the court had neither the army nor the control over government to affect their decisions. Hamilton, however, was quickly contradicted by the very institution he helped create. The Supreme Court’s tenth case, Marbury v Madison, ruled that federal courts have the ability to rule executive and legislative acts unconstitutional. This gave the Supreme Court its “purse string.” Marbury v Madison should not nullify the true intentions of the Supreme Court, though. The court was and still is supposed to be the least dangerous branch of the government.
Perhaps the only thing Democrats and Republicans can agree on is that they view the Supreme Court not as an objective body to keep Congress and the Executive Branch in check but a political branch that works to further their political desires.
The second (and just as important) aspect of the Supreme Court is that the justices are supposed to remain objective and, without personal policy preference, decide cases. It would be dishonest to pretend as if this intention hasn’t already been cast aside. Justices like Clarence Thomas and Sonia Sotomayor are a perfect example. Just the same as Justice Amy Coney Barrett’s nomination exemplified, the original intention of the founding fathers no longer matters in today’s political world. Perhaps the only thing Democrats and Republicans can agree on is that they view the Supreme Court not as an objective body to keep Congress and the Executive Branch in check but a political branch that works to further their political desires.
If six partisan justices were added to the Supreme Court today, no matter the ideology, there would be an invincible majority. This would, for all intents and purposes, turn the Supreme Court into a super legislator.
You might find yourself asking, “Why does packing the court matter if the original intention of objectivity is already forgotten?” The answer to this is simple: the justices are in a constant cycle of being replaced, so the court stays relatively balanced. In my opinion, there are three partisan Democrat justices, four partisan Republican justices, and two swing justices in Chief Justice John Roberts and Brett Kavanaugh. Packing the court would upset this balance. FDR’s proposal was to add six justices to make a court of fifteen. If six partisan justices were added to the Supreme Court today, no matter the ideology, there would be an invincible majority. This would, for all intents and purposes, turn the Supreme Court into a super legislator.
This is obviously bad. As many of us learn at a very young age, the United States government was built with the intention of making sure that every branch of government is checked and balanced by another. This intention would be nullified if the Supreme Court was packed. The checks on the court would remain the same as they are today. The president would nominate, the senate would confirm, and congress has the ability to impeach a sitting justice so long as they feel the justice has not remained in “good behavior.” There would be little to no balance against the Supreme Court. The court could rule opposing parties bills as unconstitutional without any need for a legitimate argument and Supreme Court cases would be decided along policy lines rather than constitutional ones meaning an almost certain violation of our constitutional rights.
To those who want to pack the court I would say, “At the end of the day, it is better to have a system that you disagree with on a policy level than a system that sees your human rights as a line to be crossed in search of some utopic future or a power grab.” Yes, the Supreme Court is currently in shambles, but the way to fix it is not to pack the court. You cannot fix an unfair system by making it even more unfair.
If you still feel that packing the Supreme Court is necessary to a properly functioning court then I ask you this:“If packing the court is truly not about inserting justices to do your bidding but rather preserving the Constitution, should President Trump, with the intention of preserving the Constitution, pack the court? If you answered ‘No’, is that because you would be afraid that he would insert judges to do his political bidding?” The coin has two sides. Neither party should pack the court because, regardless of what they may say their intentions are, politicians only want to ease the path to power.