Justice Ruth Bader Ginsburg’s recent passing sparked a political firestorm, as Republicans prepare for a contentious, pre-election confirmation showdown and some Democrats threaten to, quite literally, burn the country down. In recent years, however, Democrats have also floated court-packing as a viable avenue to ensure a left-leaning Supreme Court for future generations.
The proposal picked up steam in 2018 following the contentious confirmation hearing of Justice Brett Kavanaugh. Democrat activists began to glom onto the idea, pitching it as a way to “balance” the court and prevent further influence from the sitting commander-in-chief or future right-leaning presidents. That year, the far-left Daily Kos cautioned Republicans, warning that a “future government controlled by Democrats is likely to pursue that option” — court-packing — as “the best way to rebuff a conservative Court majority viewed as illegitimate.”
Then-congressional candidate Alexandria Ocasio-Cortez even told voters during an October 2018 campaign event that Democrats should “pack the Supreme Court of the United States of America” after taking the House, Senate, and presidency.
Senate Democrats renewed the warning again the following year over pending decisions on Second Amendment “and other issues,” as Breitbart News reported:
Sen. Sheldon Whitehouse (D-RI) filed an amicus brief (“friend of the court” legal brief) at the Supreme Court on Monday, joined by follow leftwing partisan Sens. Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Richard Durbin (D-IL), and presidential candidate Kirsten Gillibrand (D-NY), demanding that the Supreme Court back out of a case over one of the most restrictive gun control laws in America.
These leading Democrats also warned that if the justices proceed to issue a pro-Second Amendment ruling, and if Democrats win the White House and the Senate in 2020, then they will fundamentally remake the High Court.
Although Congress sets the number of seats on every federal court – including the Supreme Court – by statute, the number of seats on the Supreme Court has stayed constant at nine for well over a century, since the 1800s.
Former President Franklin Roosevelt issued the threat in the 1930s after facing legal obstacles with his New Deal and subsequently “threatened to expand the Court by six seats for a new total of 15 justices so that he could get the rulings he wanted.” The American people, however, rejected his threat, “leading to massive Republican victories in the 1938 midterm elections,” as Breitbart News detailed.
The issue recently arose again during the Democrat primary race, as former Mayor Pete Buttigieg (D) hinted at a plan to pack the Supreme Court. During the December debate at Loyola Marymount University, Buttigieg said he would ” begin moving to reform the body itself, as our country has done at least half a dozen times in its history, so that it is not one more political battlefield every single time a vacancy comes up.”
He was not the only Democrat candidate to float the possibility. Former Democrat presidential candidates Sen. Elizabeth Warren (D-MA), Kirsten Gillibrand (D-NY), and now vice-presidential candidate Sen. Kamala Harris (D-CA) announced that they were open to reshaping the court.
“We are on the verge of a crisis of confidence in the Supreme Court,” Harris said, according to Politico. “We have to take this challenge head on, and everything is on the table to do that.”
Warren described it as “a conversation that’s worth having,” contending that it would be about “depoliticizing the Supreme Court.”
Then again, over the summer, several major progressive groups, including Take Back The Court, Demand Justice, Progressive Change Institute, and the Sunrise Movement, signed a letter declaring their support for increasing the number of justices by “at least” two seats. They wrote in part:
The fastest, most effective way to reverse the Republican theft of the Supreme Court and make the court representative of all Americans is to enact legislation increasing the size of the Court by at least two seats, and to quickly fill those seats with justices who will safeguard our democracy. Unlike other reforms, expanding the size of the Supreme Court can be done via legislation that need only be passed by simple majorities in Congress — the Constitution does not set the number of justices on the Supreme Court, which has been changed several times in American history with legislation. Subsequent reforms like term limits and a code of ethics for justices will prevent a narrow political faction from ever again gaining lasting control over the judiciary.
In March 2019, President Trump wholly dismissed mounting calls from his ideological opponents to pack the Supreme Court as a means to hold conservative rulings at bay.
“No, we would have no interest in that whatsoever,” Trump said at the time. “It will never happen. It won’t happen for six years.”
“The only reason is that they’re doing that is they want to try and catch up, so if they can’t catch up through the ballot box by winning an election, they want to try doing it in a different way,” he added.
Perhaps most significantly, the late Justice Ginsburg also balked at the proposition of packing the Supreme Court.
“It would make the Court look partisan,” the late justice told National Public Radio’s Nina Totenberg last year.
Nevertheless, the titan’s passing has talk of expanding the court emerging to the forefront of political conversations yet again, just weeks ahead of the election.
“If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” House Judiciary Committee Chairman Jerry Nadler (D-NY) said on Saturday.
“Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials,” he added. “Congress would have to act and expanding the court would be the right place to start”:
Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start.
— Rep. Nadler (@RepJerryNadler) September 19, 2020