The history behind the phrase “packing the court”

SARASOTA, Fla. (WWSB/Washington Post) - Here’s an interesting little tidbit for our history buffs.

On this day in history in 2018, Brett Kavanaugh is confirmed and sworn into the US Supreme Court. Speaking of the Supreme Court, if you’ve been following the debates, you may have heard the repeated phrase “packing the court”.

But what does “packing the court” mean? Here’s an attempt to break it down for the everyday person like me and you.

On February 5, 1937, President Franklin Roosevelt announced a controversial plan to expand the Supreme Court to as many as 15 judges, allegedly to make it more efficient. His critics immediately charged that Roosevelt was trying to “pack” the court and thus neutralize Supreme Court justices hostile to his New Deal. A move by on his part to increase the size of the Supreme Court and then bring in several new justices who would change the balance of opinion on the Court. Roosevelt proposed to pack the Court in the 1930s, when several conservative justices were inclined to declare parts of his program, the New Deal, unconstitutional. Congress would not allow the number of justices to be increased, and Roosevelt was criticized for trying to undermine the independence of the Court. At the time, Democrats controlled the House, Senate and White House so things didn’t go so well for FDR and his New Deal. The law was never enacted by Congress.

Fast forward to current times, more than eight decades later, some Democrats are once again urging an expansion of the Supreme Court in the wake of liberal Justice Ruth Bader Ginsburg’s death. According to a recent article in the Washington Post, the idea is back in the political foreground as some Democrats, frustrated that the Supreme Court could get even more conservative in the coming months, push presidential nominee Joe Biden to consider it if he wins the White House and Democrats take back the Senate majority, receiving complaints from the Republicans painting the picture as sour grapes. Each party, wanting to keep the majority in the interest of their own party.

The Washington Posts defines the term - “Court packing is adding more judges to a court than there are now, something that can be done on the federal level simply by passing a law. The Constitution says nothing about how many justices there must be on the Supreme Court, and over time, the number has fluctuated. The court started out with six justices, expanded to seven and has gone as high as 10. Congress set the Supreme Court to be nine justices in 1869, but if a president and Congress agree, they could change the law to expand the court or shrink it.”

The argument that most have in adding more justices to the court - In doing so, would change the political makeup of the court and influence its decisions. Congress and the president might decide that the court majority is too far out of line with their understanding of the Constitution and the law or public opinion, and then add seats and fill the court with justices who think more like them in the hope of rebalancing the scales to dilute the votes.

In an email to The Fix, Georgetown University law professor Josh Chafetz is quoted, “since justices effectively can’t be fired, except by impeachment, the idea of court packing is to dilute their vote".

Biden has avoided talking about it — both he and vice presidential nominee Kamala D. Harris have avoided responding to direct questions in their respective debates, about whether they would support packing the courts. In his reply to moderator Chris Wallace in the September debate, Biden is quoted, “Whatever the position I take on that, that will become the issue”. Frustrated by the indirect answers and response to the direct questions relating to this particular topic, the Republicans are claiming, this IS the issue.