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Packing the Supreme Court

Researching facts to make sure the public is properly informed and the information is easily understood.

 'Do We Want A Ventriloquist Act In The Supreme Court?' 1937 Getty Images

'Do We Want A Ventriloquist Act In The Supreme Court?' 1937 Getty Images

Who Started 'Court Packing' ?

The idea of packing the court came about during the time Franklin D. Roosevelt was in office. There was a series of legislation he wanted to ensure would be passed by the Supreme Court. Roosevelt thought the best way to do this was to propose a bill that would expand the number of justices. According to FJC.gov, this bill would've added one justice to the Court for each justice over the age of 70, maxing out at 6 new justices. Both major parties highly opposed this idea, and it was never passed by Congress.

Franklin D. Roosevelt, 1937

Franklin D. Roosevelt, 1937

Modern Dems' Original Stance on Packing the Court

In a CNN Live Presidential Debate some time ago, Biden was asked about packing the Supreme Court to help protect women's right. Biden was intent on making it very clear he did not believe in court packing. He mentioned how if they added justices, the next party would want to do the same. Eventually it would just be both sides adding justices until it completely invalidated the Supreme Court altogether. This is basically the same reason it didn't pass in the 1930s. If Biden wouldn't pack the Supreme Court to protect women's rights, what could be the Democrats motive for considering it present day?

packing-of-the-supreme-court

Losing a Seat

Antonin Scalia passed away during the Obama Administration in 2016. Mitch McConnell immediately suggested that the Democratic President not be allowed to fill the newly open seat, but instead to allow the next candidate make the nomination. Going back to obamawhitehouse.archives.gov, Obama nominated Merrick Garland to the Supreme Court March 16, 2020. Garland was one of the most supported judges by both Republicans and Democrats at the time. The Republican Senate ended up allowing Garland's nomination to expire after about 290 days, rather giving it any consideration. The seat was not filled until several months later when Donald Trump took office.

Biden, Garland, Obama (Left to Right)

Biden, Garland, Obama (Left to Right)

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Passing of Another Justice

Ruth Bader Ginsburg of the Supreme Court passed away Sep. 18th, 2020. With this being an election year, the question of who should fill the seat arises once again. Democrats feel that the seat should not be filled until after the election. This gives the people a chance to vote for President, then have whoever wins the election make a nomination. Now that Republicans hold office, they feel it is their duty to fill the seat despite denying the last President to do so. This undoubtfully caused heightened tensions between the two parties.

Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg

Revenge Over Rights?

It seems that with the rise in tensions, the Democrats could be pondering a way to retaliate. Possibly using the idea of packing the court as a way to combat the Republicans' decision to ignore the Democratic Supreme Justice nominee in 2016, while allowing Trump to nominate a justice this 2020 election year. Considering how against packing the court Democrats were concerning women's rights, it would not be in their best interest to change their tune in attempts to take a blow at the Republican Party. As election time nears, the question has come up several times whether or not Democrats want to pack the Supreme Court. It seems that in a few quick interviews Biden avoids the question about court packing directly. He suggests he will go into details about his administration's stance on it after the election. This leaves people to wonder if the Democrats do, in fact, plan on trying to pack the court. What could packing the court mean for America?

packing-of-the-supreme-court

Cause and Effect

America has had nine justices on the Supreme Court since 1869. These justices are nominated by the President and confirmed by the Senate. Packing the court would give one party much more power over the other. Possibly being the end of the two party system as we know it. Currently, there are five Republican nominated justices and four Democratic nominated justices.

Republican Nominated

  • John G. Roberts
  • Clarence Thomas
  • Samuel A. Alito
  • Neil M. Gorsuch
  • Brett M Kavanaugh

Democrat Nominated

  • Ruth Bader Ginsburg
  • Stephen G. Breyer
  • Sonia Sotomayor
  • Elena Kagan


After the passing of Justice Ruth Bader Ginsburg, Democrats are left with only three confirmed picks for the Supreme Court. Trump nominating a justice during an election year will give Republicans an advantage over the court if a Democrat is appointed President next term. The Supreme Court will have six Republican nominated justices out of the nine. This could leave some with the idea Republicans may be taking over the court behind the scenes. It in turn, it could be the underlining cause of the Democrats considering adding to the justice seats.


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Sources:

This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

© 2020 Ashleigh Nicole

Comments

Ashleigh Nicole (author) from Florida on October 12, 2020:

I really enjoyed your "book" lol. You're very knowledgeable and have helped me learn so much instead of belittle me or try to insult me the way a lot of people do online towards. I would have never thought, in a million years, I'd be studying politics on my own outside of school. lol I hate politics. Always have. Being able to share information and learn from people like yourself makes it such a nice experience searching for the truth of things. I wish more young people would get into politics. I know they teach us in school, but once we get out we get caught up in our own little worlds that there is a lot we miss. I watch a lot of people my age (I'm 29) talk about politics and pick sides... but they don't actually vote. Or they won't actually try and educate themselves. There was a ton of things I was ignorant to before I started writing articles on politics and government. I wish I had this kind of passion for it in high school lol My history grades would have been a tad better and I wouldn't have drove my teacher crazy

Sharlee on October 12, 2020:

Great article, really got me thinking --- Roosevelt did think packing the court could help him proceed with getting his proposal bills ultimately into law. He was an icon of liberal/progressive politics. He was somewhat willing to disregard the Constitution for a Supreme Court that would become an arm of the legislative branch of Government. A court with justices that could if desired follow their own ideology versus the Constitutional law. This is in fact what we do have today we have three progressive judges. With nine justices some progressive some strict Consitusionalist it has seemed to work well. It does leave one to think what if? What id the court became very lopsided with a large majority that was much more progressive, and strayed far from the constitution? Would we be entering a one-party Government?

Yes, Biden on several occasions early on as a Senator, and prior to winning the primary said he did not believe in court-packing. Although at this point he will not answer the question would he be ok with court-packing? Today, he actually said we have no right to an answer... The fact, he won't answer the question. So, it leaves one to gamble with a 50-50 chance to keep our Constitution intact.

Obama nominated Merrick Garland with plenty of time to confirm him. The problem --- Mitch McConnell considered Obama a lame-duck president due to being at the end of his 8 years in office, and the problem of a Republican-majority Senate. The Senate Republicans' unprecedented refusal to even consider the nomination. The situation with Trump's nomination of Barrett is different. Trump is not considered a lame-duck president due to the possibility he may remain in office, and his party is a majority in the Senate. So was it fair not to consider Obama's pick for the Supreme court? Let's look to history, precedent ---Lame-duck nominations were a common feature of nineteenth-century appointment politics, accounting for 16 percent of all nominations made before 1900, but there have been no lame-duck nominations in over a century. Lame-duck nominations also had a high rate of failure.

Your thought about the rise in tensions, and that the Democrats could be pondering a way to retaliate. This could be true. But such retaliation could severely disrupt the way the Supreme Court functions. It's clear and proven the progressive justices on the court feel the Constitution is open to interpretation. The Conservative justices tend to rule Cositusionally, using precedent to rule. And yes Conservatives are the majority at this point in our history. I must point out the conservative justices have crossed over and be a swing vote with the progressives on many occasions. Progressives very rarely cross over as a swing vote. This should be food for thought when it comes to a packed court situation. It well appears Conservative justices will be less political when it comes to ruling.

The court has functioned well with nine justices throughout history, with few hiccups. I guess one must think hard about tweaking the Constitution. The Constitution certainly protects our freedoms and offers us many rights.

OMG, I wrote a book... LOL Hey I told you you got me thinking, and that should tell you --- your article was good, provoking without any bias.