This week, the nation woke to the news that the U.S. Supreme Court was considering overturning the controversial 1973 decision of Roe v. Wade. Despite the leaked opinion only being a draft and not final, the left is apoplectic, arguing that this is an assault on women’s rights and the end of democracy. Of all the responses from the left, there has been one that is particularly insidious: the resuscitation of the Democrat’s proposal to pack the court.
What does packing the court do? Where did the idea originate? And what are likely outcomes?
Put simply, packing the court means increasing the number of justices on the court—specifically, in this case, the Supreme Court—for political purposes. Because the Constitution does not mandate nine justices, the legislative and executive branches can change the makeup of the court without having to remove anyone by impeachment. Currently, the Supreme Court consists of nine justices—six appointed by Republican presidents and three appointed by Democratic presidents. By increasing the size of the Supreme Court to 11, President Joe Biden could then add justices that are not only more likely to side with a progressive view on abortion, but also more likely to side with the left on other issues such as immigration and state power.
While there have been expansions and contractions of the Court in the past, packing the court to change the interpretation of a specific area of law has only been proposed once in the history of the United States. True court-packing was first proposed by President Franklin Delano Roosevelt in the 1930s as a response to a “hostile” court. The court, by a 5-4 majority, had attempted to rein in the behemoth FDR was attempting to create by striking down New Deal legislation as unconstitutional—FDR wanted to change that.
Against the advice of many members of the Democratic Party, FDR’s friends in Congress proposed the Judicial Procedures Reform Bill of 1937, which would have allowed FDR to appoint up to six additional judges. While the idea was decried by the public, the threat of the bill was enough to make the Supreme Court change its tune and allow one of the greatest expansions of government in American history.
Democrats revived this idea after President Trump was able to nominate three justices during his time as president. When President Biden took office, he formed a Presidential Commission to offer proposals to reform the Supreme Court. While the commission looked at the idea of court-packing, even its members felt the issue was too contentious and could offer no recommendation for or against court-packing to the president.
That is because court-packing—and even the discussion of court-packing—threatens the very fiber of the Supreme Court. Due Process requires courts to be neutral arbiters of the law, free from bias and politics. The courts are intentionally insulated from the political process via lifetime appointments and prohibitions on reductions in their salary. In doing so, they are less likely to be influenced by politics.
Court-packing changes that. It would make it so that the courts are blatantly political, as the number of justices on the court would be subject to the will of Congress and the president. One can easily envision a future in which, as the presidency switches parties, the court gets bigger and bigger, with each president adding two or more justices in order to get a court that aligns with his or her political views.
However, counters the left, the court is already acting as a political body. The left argues that by potentially striking down Roe v. Wade, the Supreme Court has shown its card and demonstrated that it is merely a conservative institution acting contrary to the “will of the people.” Thus, the left needs to take political means to curb the conservative influence and even the playing field.
This argument assumes that the striking of Roe v. Wade is a political move. But that assumption is critically flawed. As the arguments of the past 49 years have shown us, the question of abortion is an incredibly charged political issue. It is not an issue addressed in the Constitution, and it is not one that the courts can simply remain neutral on—it is an issue that needs to be addressed, argued, and decided in the political sphere. By striking Roe v. Wade, the Supreme Court would not ban abortion; rather, it would return abortion to the political sphere, where the will of the majority will answer the question on a state-by-state basis.
In 1973, when the Supreme Court issued the Roe v. Wade, conservatives were outraged at the decision. However, they did not respond with a suggestion to pack the court—instead, they launched a 50-year effort, through persuasion, argumentation, and support, to convince the Supreme Court that Roe v. Wade was a bad decision. But in 2022, when the Supreme Court stands on the precipice of returning the issue of abortion to the states, the left seeks not to persuade or argue their case, but rather to destroy the entire judicial institution through court packing. This must be opposed.