“Are you and Joe Biden going to pack the court if judge Amy Coney Barrett is confirmed?” Mike Pence asked Kamala Harris the night of the vice presidential debate on October 7, 2020. The conversation around packing the court has had a resurgence in the past months after the death of Justice Ruth Bater Ginsberg during a presidential election. But what does packing the court mean?
The term pack the court often refers, in the current context, to Democrats “wanting to add more justices to the Supreme Court,” says David Marsh, an AP Government teacher at Franklin High School. Court-packing could also mean Republicans putting as many conservative judges on both federal and Supreme Courts, but the focus of this article will be on the former definition.
People often are against court expansion because it would go against the Constitution, but the Constitution says nothing about how many justices should be seated on the Supreme Court. Instead, the size of the court is up to Congress and the president to decide. The amount of Supreme Court justices has changed six different times in the history of the United States. The last time it was expanded was under President Ulysses Grant in 1869, where it grew from seven justices to nine. Although Franklin Roosevelt pushed for expanding the Supreme Court to fifteen justices, it never went far and the number stayed at nine.
One reason to expand the Supreme Court is to diversify it. “The Supreme Court is insanely white,” says Marsh, “[and] there is still a total of three female justices on the Supreme Court… [that] doesn’t reflect the basic demographics of the country.” Out of the 115 total Supreme Court justices, 108 have been white men. There have only been five women and three people of color ever appointed to the court. There have never been justices who identify as Asian, Native American, or Pacific Islander, and there have been no members of the LGBTQ+ community. Expanding the number of Supreme Court justices gives more opportunities for the Court to accurately reflect what the United States looks like.
Both Republicans and Democrats have criticized attempts to add more justices. “[Adding more justices] would make the court look partisan,” said the late Justice Ruth Bader Ginsberg to NPR. “It would be one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ” This is a concern that many Democrats have. If Democrats enlarge the Court, then when Republicans are in control they will do the same, making the Court even more partisan.
The way to solve this problem is to have a system to put in more judges with bipartisan support who will represent the Constitution well. Adding more judges will also fix the hyper-political nature of the Supreme Court by having one president’s influence on the court be less substantial. Donald Trump appointed one-third of the sitting Supreme Court justices, making his influence on the United States linger long after he leaves office. If two or more justices are added to the Court, it makes one president’s influence less substantial.
Pete Buttigieg, one of the Democratic presidential candidates in the 2020 primaries, had a court expansion idea that would ensure bipartisan justices. There would be fifteen justices on the Supreme Court; ten of them would be chosen how they are currently, and the last five would be moved up from the lower courts by a unanimous vote from the other ten justices. This would ensure at least five somewhat-bipartisan justices on the court at all times. Though not a perfect system, Buttigieg’s idea is a good starting point for Supreme Court reform.
Although it’s primarily Democrats pushing for a Supreme Court expansion, there are bipartisan reasons to do so. Diversity and fairness are principles that the United States is supposedly built on, so the Supreme Court should reflect these ideas. But it doesn’t. Adding more justices is a way to fix this.
