After the death of Ruth Bader Ginsburg, who served as the Justice of the Supreme Court of the United States (SCOTUS) for over 27 years, Democrats are seriously considering court-packing, or expanding the bench of the highest court in the country. The idea is to ensure that the court does not remain strongly to the right for the next 30-40 years or so, since judges serve for life. Under Trump, the court is already considered to be one of the most conservative-leaning courts in US history.
Last week, Representative Jim Jordan of Ohio, a close ally of US president Donald Trump, submitted a resolution to Congress demanding that the number of Justices of the Supreme Court remain the same. In the resolution, Jordan wrote, “any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our Nation’s highest Court”.
So what is court-packing?
Court-packing simply means increasing the size of the bench of the Supreme Court of the United States and can be done by passing a law. The strength has remained at nine justices for about 151 years from when the Judiciary Act was approved in 1869.
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Has it been attempted before?
The idea of expanding the court is associated with Franklin D Roosevelt, who is credited with one of the most famous attempts to do it. After winning the 1936 presidential elections, Roosevelt proposed a Bill called the “Judicial Procedures Reform Bill of 1937” to expand the membership of SCOTUS. If passed, the law would have added one justice to the court for each justice above the age of 70 years, with a maximum of six additional justices.
In other words, the legislation would have increased the strength of the SCOTUS bench to a maximum of 15 justices. At the time, Roosevelt pushed the legislation to shape the ideological balance of the Court such that it would stop his New Deal legislation from being struck down. He was criticised by both parties and even his vice-president John Nance Garner at the time.
How are SCOTUS judges appointed?
Judges to the Supreme Court of the United States are nominated by the president and confirmed by the Senate (the upper chamber of the US Congress). Currently, the Republicans control both the Senate and the presidency, which is what some Democrats are bothered by. An article in The Washington Post says some Democrats are “frustrated” because of how the newest two justices were nominated by a “president who lost the popular vote” and approved by a “bare majority of the Senate”.
While in India, judges have a fixed retirement age, this is not the case in the US, where federal judges can serve for life. Their terms end only if they resign, pass away or are impeached and convicted by Congress.
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Because there are no term limits, the liberal-conservative divide in the federal judiciary becomes highly consequential for decades. The US Supreme Court’s oldest member in history, Justice Oliver Wendell Holmes, Jr., retired in 1932 at the age of 90 after serving for 30 years. Justice Ginsburg was 87, and had been on the bench for 27 years.
But why are some Democrats considering court-packing now?
The Democrats are worried that SCOTUS could get even more conservative after Trump nominated Amy Coney Barrett to fill Ginsburg’s seat. With Ginsburg’s death, SCOTUS now has five justices that were nominated by a Republican president and three that were nominated by a Democratic president. This means that the court already has a conservative majority and if the Senate were to approve Trump’s nomination to fill Ginsburg’s seat–which would be Trump’s third justice appointment during his tenure– it would make the conservative-liberal split even starker.
This is important since decisions taken by the court affect the life of the citizens, ranging from issues such as abortion to immigration and gun control.
Trump’s nominee Barrett identifies as a devout catholic and has a judicial record of being against abortion access, making her popular among religious conservatives who are pushing to overturn the 1973 decision that legalised abortion across the US. She has also voted in favour of several of Trump’s extreme immigration policies and has indicated her support for extensive gun rights.
Significantly, Trump has been pushing to nominate the ninth justice before the election. Democrats have called out Trump for pushing the vote for the nomination during an election year. Their objections are in light of the fact that the Republicans in the Senate refused to consider former US President Barack Obama’s nominee for the court, Merrick Garland, after Justice Scalia passed away in 2016.
Garland’s nomination had come 237 days before the election that year and was successfully blocked by the Republicans in the Senate. They argued that the decision should not be made during an election year.
What has Joe Biden and others said about court-packing?
Democratic presidential nominee Joe Biden has not yet acknowledged the Democratic calls for expanding SCOTUS. In July 2019, Biden said he was not prepared to pack the court, “because we’ll live to rue the day”.
‘‘I would not get into court packing. We add three justices. Next time around we lose control, they add three justices. We begin to lose any credibility the court has at all,” Biden told Iowa Starting Line. From Biden’s point of view, expanding the court can backfire on the Democrats when they are out of power. Further, during the first presidential debate, Biden dodged the question about court-packing, which might be an implication that the issue is not central to the Democratic campaign.
Rich Lowry, the editor of conservative news and opinion website National Review wrote in Politico that if Biden was to make court-packing the major initiative of his presidency it would validate the critique against him that he is “weak and prone to getting pushed around by the left.”
Significantly, the Democratic vice presidential nominee Kamala Harris told CNN in an interview recently that the question of court-packing can be dealt with “later”.
Ginsburg herself was opposed to the idea of court-packing and in 2019 said, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court’’, and that ‘‘(i)f anything would make the court look partisan, it would be that’’.