Many democratic presidential candidates have discussed a hardly known concept called court-packing. The term refers to adding of Supreme Court justices with the intent of changing the political ideology of the Supreme Court.
Many people commonly believe that the number of Supreme Court justices is limited by the constitution; however, no such provision at this time exists.
Having a court of nine justices has not always been the case. The Judiciary Act of 1789 established a six-member court whose number fluctuated regularly between the law’s passage and President Abraham Lincoln’s term.
The current number of nine has remained the same since the Judiciary Act of 1869 was passed. The proposal of many current Democratic presidential candidates to change the number for political gain is not a new concept.
Court-packing has been widely discussed when President Franklin D. Roosevelt proposed changing the number of justices to fifteen to dilute the votes of anti-new deal justices. His proposal was not well-taken in Congress, so the precedent of nine justices lived on to this day.
Current presidential candidates Sen. Kamala Harris and Mayor Pete Buttigieg have mentioned this as a policy proposal if they were to become president. Many contend that by packing our current court, it would become more ideologically central and less “radically conservative.”
Regardless of whether or not it would “positively” improve the diversity of ideology on the Supreme Court, the court’s number should not be changed as it would be a crisis for our government and country.
The judiciary is regarded by many scholars as to the weakest of the three main branches of government but holds the most significant oversight powers over the other two branches. The court interprets laws, strikes down unconstitutional laws, holds and declares executive orders unconstitutional and ultimately serves as a constitutionality check on the other two more-politically driven branches.
It is constitutionally designed to be politically impartial. Although the nomination and confirmation process for justices has increasingly become more partisan in their confirmations, the court has remained independent. It is still the least politically bounded institution of government. It is still maintaining its impartiality and is holding to its commitment and purpose. The court must remain neutral from political and partisan control and must remain independent as it serves its instrumental role. Packing the court would completely undermine the separation of powers and the impartiality of the court. It would open the door to regular changes to the court due to political ideology, and not by the proven record or legal regard.
If people want the court to be changed ideologically, they need to either impeach justices or nominate and confirm future justices more aligned with Congress’ current view. Ultimately, if they want to change, they need to follow constitutionally given options.
Court-packing is a scary thought for democracy and should never occur. The preservation of court independence and impartiality depends on our votes.