Democrats Threaten to Pack the Supreme Court if Ginsburg Replacement is Rushed
With Supreme Court Justice Ruth Bader Ginsburg’s death on September 18, President Donald Trump has been afforded an opportunity to appoint a third Supreme Court Justice, after his appointments of Neil Gorsuch and Brett Kavanaugh earlier in his administration.
Although President Trump is up for reelection in November, and control of the Senate is also up for grabs, President Trump and the Republican Senate majority could appoint and confirm the new Justice either before the election or after the election but before the new Congress is seated on January 3, 2021.
Republican lawmakers are currently advocating the appointment and confirmation of Justice Ginsburg’s replacement before election day. President Trump has also promised to name a new Supreme Court Justice imminently. On September 19, the day following Justice Ginsburg’s death, President Trump Tweeted “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
In 2016, after the death of Antonin Scalia, President Barack Obama appointed Merrick Garland to fill his seat. However, Senate Majority Leader Mitch McConnell refused to schedule a hearing on Garland’s nomination, arguing that the post should not be filled until after the 2016 election. He even cited then-Vice President and current Democratic presidential nominee Joe Biden, who, in 1992, had argued that a Supreme Court vacancy should not be filled immediately before an election.
The possibility that President Trump and the Republican-controlled Senate would confirm the Justice after having stopped the appointment of Garland has incensed Democratic lawmakers. Senate minority leader Chuck Schumer stated “Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.”
Senator Ed Markey, Democrat from Massachusetts, was more explicit, tweeting “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must… expand the Supreme Court.” Rep. Joe Kennedy, also of Massachusetts, echoed the sentiment, tweeting “If he holds a vote in 2020, we pack the court in 2021… It’s that simple.”
What Senator Markey and Representative Kennedy are referring to is the idea of “court packing,” which means appointing more Supreme Court justices than the traditional nine.
Article 3 of the Constitution establishes the Supreme Court but does not mandate a particular number of justices. The Constitution mandates only that Supreme Court justices be appointed by the president with the “advice and consent” of the Senate. Originally, there were just six justices, and the number fluctuated between six and 10 until 1869, when the Judiciary Act of 1869 established that the Supreme Court would consist of a Chief Justice and eight associate justices. Still, there is noting in the Constitution that stops the president from appointing more justices and they would be added to the Supreme Court upon confirmation by the Senate.
Since 1869, this idea of adding justices has been frequently discussed, but only once did it nearly come to fruition. This happened in 1937, after several pieces of President Franklin Delano Roosevelt’s “New Deal” legislation were struck down by the Supreme Court, all by 5-4 majorities. Faced with the reality that five Supreme Court justices felt that much of the New Deal was beyond the scope of federal power, President Roosevelt proposed appointing a new Supreme Court justice for every justice over the age of 70. This would have allowed Pres. Roosevelt to appoint as many as six new justices, securing a large majority in favor of allowing the New Deal legislation.
On February, 1937, President Roosevelt went so far as to have this plan introduced in Congress, to intense criticism by elements of the media, legal scholars and members of the Supreme Court itself. While Roosevelt’s proposal was before Congress, the Supreme Court decided NLRB v. Jones & Laughlin Steel Corporation in which a key piece of new deal legislation was, this time, upheld by a 5 to 4 margin.
Justice Owen Roberts, who had sided with the majorities in striking down New Deal legislation in previous cases, provided the critical fifth vote. With this change, Court packing now seemed unnecessary, and Roosevelt’s court packing plan failed in the Senate by a large majority. Justice Roberts’ change of heart is sometimes referred to as the “switch in time that saved nine,” in that it preserved the integrity of the nine person Supreme Court. Though, to be fair, it is unclear to this day whether Justice Roberts’ switch had anything to do with the court packing plan or whether the plan had a chance of passing in any case.
Thus, the court packing idea has some history, though no attempt to effectuate it has come very close to success.
Moving back to the present day, what will likely transpire over the next days and weeks is a negotiation process between the parties that may or may not produce some sort of compromise. So far, Democrats have overtly or implicitly threatened three retaliatory measures if Republicans confirm President Trump’s appointment before the 2021 government is sworn in:
1. Adding as many as four new Supreme Court justices, thereby securing a “liberal” majority on the Supreme Court.
2. Eliminating the filibuster once and for all, thereby securing complete control of the government assuming that Biden wins the election and the Democrats take control of the Senate in 2021.
3. Securing statehood for Puerto Rico and the District of Columbia, thereby potentially adding four new Senate seats, which would likely be democratic.
The first two are directly related to the “court packing” plan. The plan would be styled as retaliation for what some Democrats see as the inconsistency of blocking Merrick Garland during the 2016 election cycle and then approving the new Trump nominee during the 2020 one.
The second could be necessary to effectuate the court packing plan. The filibuster no longer applies to judicial appointments. It was ended by Democrats in 2013 for appointments of lower federal court judges, and Republicans returned the favor for Supreme Court justices in 2017 to ensure the confirmation of Justice Neil Gorsuch.
However, it still applies to most other legislation. Recall that under the Judiciary Act of 1869, the number of Supreme Court justices is currently fixed at nine. Federal legislation can, of course, be overturned by subsequent legislation, but overturning the Judiciary Act of 1869 would undoubtedly be filibustered by Senate Republicans. Under the current Senate rules, a party can filibuster legislation as long as it has at least 41 votes, as it takes 60 votes to end debate and force a vote on legislation. Thus, ending the filibuster would probably be necessary to expand of the number of justices.
Alternatively, a President Biden might take the position that the Judiciary Act’s limitation on the number of justices is unconstitutional, given that it is the President who is given the constitutional authority to appoint justices. A limitation on that authority may therefore be considered a violation of separation of powers. Ironically, this issue would likely be decided by the current Supreme Court, making it unlikely that they would vote to effectively dilute their own individual powers.
The third proposal, adding additional states, would seek to neutralize the natural Republican Senate advantage that arises from the fact low population states tend to vote Republican more so than high population states. For example, Wyoming and California each have two senators even though the latter is more than 60 times is populous. Adding two new low population states, such as the District of Columbia and Puerto Rico, would help neutralize this disadvantage. While not directly related to packing the Supreme Court, these steps would make it much easier for Democrats to gain or maintain control of the Senate.
It also must be noted that even if the new justice is appointed by Democrats in 2021, “conservative” justices would still maintain their present 5-4 majority. If a controversial case were decided by that majority while Democrats controlled the White House and Senate, renewed calls for court packing would undoubtedly commence. Thus, a compromise, whereby Republicans leave open the seat vacated by Justice Ginsburg’s death, while Democrats promise to avoid packing the Court and to preserve the status quo, is possible. The decisions seems to be in the hands of a handful of GOP Senators. Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska have indicated opposition to filling the vacancy, while other Republican Senators such as Chuck Grassley of Iowa, Martha McSally of Arizona and Cory Gardner of Colorado may be in play. Due to the current makeup, Republicans can lose up to three GOP Senators without losing a vote, assuming all Democrats toe their party line.
The negotiations will undoubtedly get interesting and almost any result is possible, but whether the nine Supreme Court justice number is just another norm destined to fall is something that we will be keeping a close eye on over the next months and years.
 301 US 1 (1937)