Democrats are hoping to capture Americans’ imaginations (and votes) ahead of the 2020 elections with increasingly bold new policy ideas — from a Green New Deal tackling climate change to breaking up giant tech companies.
But a handful of candidates have left the door open to a proposal with a much longer history: Packing the currently nine-member Supreme Court with more justices to tilt its ideological bent.
What is court packing?
Packing the courts is the idea of adding justices to the Supreme Court or lower courts to shift the balance in a liberal, conservative or other direction. And it wouldn’t require changing the constitution, either.
“There is nothing in the Constitution mandating that the Supreme Court have nine members, and a simple act of Congress could increase that number to 11, or 15, or even more,” Vox’s Dylan Matthews wrote after Justice Anthony Kennedy said he would retire. “That effectively creates a way for a political party in control of the House, Senate, and presidency to add a large number of ideologically sympathetic justices to the Court, all at once.”
What’s the history of packing the Supreme Court?
Congress has added seats to the Supreme Court before.
“Parties have acted to change the size of the Supreme Court,” Yale Law School professors Ian Ayres and John Fabian Witt wrote in the Washington Post last year. “Often the tactic was a political power play. But sometimes it was undertaken for the good of the country, as during the Civil War, when the Republican Congress in 1863 added a seat to the court in part to protect the success of the war effort against formidable legal challenges.”
More recently, President Franklin Delano Roosevelt tried to pack the Supreme Court in the 1930s after conservatives on the bench blocked some of his New Deal, which was designed to get Americans to work during the Great Depression, according to CNN.
“Roosevelt proposed — after he had won reelection in November 1936 — the appointment of a new justice for every sitting justice older than 70,” Joan Biskupic wrote for CNN this week, noting that six of the nine justices serving on the court at the time were older than 70.
Roosevelt didn’t follow through.
“The public did not embrace the idea, and then-Chief Justice Charles Evans Hughes worked privately with members of Congress to stall legislation related to the additional seats,” Biskupic wrote. “Equally important, the court soon became more receptive to FDR’s New Deal.”
Eventually conservative justices who threatened the New Deal left the bench and Roosevelt installed others, CNN reports.
Which Democratic candidates would consider court-packing?
Sen. Kirsten Gillibrand of New York told podcast “Pod Save America” that court-packing and other reforms to the highest court are “interesting ideas that I would need to think more about,” Fox reports, while South Bend Mayor Pete Buttigieg signaled an openness to the idea last month. Asked in Philadelphia if he would support adding more members, the crowd laughed before Buttigieg answered.
“I don’t think we should be laughing at it — because in some ways it’s no more shattering of norms than what’s already been done to get the judiciary to where it is today,” Buttigieg said, adding that he wasn’t ready to come out with a firm position on the issue.
On Thursday, former Rep. Beto O’Rourke reportedly said he was open to court-packing in Iowa.
Who else supports packing the Supreme Court?
It’s not just Democratic presidential candidates.
Former Attorney General Eric Holder said at a Yale event earlier this month that the next Democratic president should “seriously” think about the strategy to change the courts if there’s a Democratic congressional majority to help, the Daily Beast reports.
Holder spokesperson Patrick Rodenbush confirmed the remarks, saying that “Holder said that given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations,” according to the Daily Beast.
Holder recently decided to sit out the presidential race, according to the Washington Post.
There’s even an advocacy group premised on pushing Democrats to get on board, with the self-explanatory name “Pack the Courts.”
“The Left isn’t nearly as enthusiastic about the Court as the Right is,” said Kate Kendell, leader of the Pack the Courts campaign, TIME reports. “This is a bold and brash and provocative and critical strategy. Anything that helps to counter the feckless hand-wringing that so many in Democratic leadership have engaged in, I’m all for.”
The New York Times reports it was someone associated with Pack the Courts who asked Buttigieg about the issue at the Philadelphia event last month.
Will a Democratic president follow through and pack the Supreme Court?
So far, Democrats running for president have not actively come out in favor of packing the courts — but there’s anger on the left about the conservative majority on the court after Republicans held Antonin Scalia’s seat open until President Trump was in office to appoint another conservative, according to the Washington Post.
Since then, Trump has gotten to appoint another justice, Brett Kavanaugh, who tipped the court’s balance when he replaced more moderate Kennedy.
“Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years,” said Brian Fallon, a former adviser to Hillary Clinton and leader of the advocacy group Demand Justice. “We don’t consider those two seats that Trump has filled to be legitimate.”
New seats on the court aren’t the only way to change its makeup, though: O’Rourke said in Iowa he was open to the idea of term limits on members of the judiciary, according to Associated Press and Reuters reporters.
Republicans are watching.
“Some left-wing publications are already trying to lay the groundwork for, you guessed it, literally packing the court with more justices,” McConnell said after Kavanaugh was sworn in, the Post reports. “That’s right, the far left has gone scrounging through the ash heap of American history, and they’re bandying about that discredited fantasy from the 1930s.”