WASHINGTON — If a Biden presidential administration and a Democratic Congress expand the number of Supreme Court justices — a practice popularly known as “court packing” — it could swing the nation’s highest court leftwards, but could also be politically risky for Democrats, political scientists and court observers say.
Discussion of court packing emerged over the past month after Justice Ruth Bader Ginsburg died and President Donald Trump appointed Judge Amy Coney Barrett to fill her seat. Barrett was confirmed on Monday, which increases the number of Republican appointees to six, cementing the conservative-leaning majority on the court and stoking hope for some in the pro-life movement that the 1973 Roe v. Wade decision that legalized abortion nationally could now be successfully challenged.
The U.S. Constitution does not dictate how many justices must sit on the Supreme Court; the number of justices is set by Congress and signed into law by the president. While the original Supreme Court had six justices in 1789, Congress set the current number at nine in 1869. But the topic of expanding the court has become almost taboo since President Franklin Roosevelt attempted to do it in 1937 to circumvent the Supreme Court’s decision to strike down key components of the New Deal legislation.
“It was seen as a naked power grab,” said Matthew Green, a political scientist at The Catholic University of America who recently wrote a book on congressional Republicans. “From that point on, especially presidents and members of Congress were loath to go down that road because people could always point to FDR and say, ‘Oh, you’re just being partisan and want to get the decisions that you like,’ as opposed to doing it for more neutral, less crass purposes.”
As a result, the number of justices has remained set at nine for more than a century.
Biding His Time
So far, Democratic presidential candidate Joe Biden and his running mate, Kamala Harris, have repeatedly refused to take a position on court packing. While left-leaning Democrats favor it — Reps. Alexandria Ocasio-Cortez of New York and Ilhan Omar of Minnesota both tweeted identical “expand the court” messages in the immediate aftermath of Barrett’s confirmation — moderates don’t, according to Paul Kengor, a political scientist and author of several books on Ronald Reagan.
“This is a calculated ambiguity on his part and on the Biden-Harris ticket because, regardless of where they stand, I think they want the hard-left base to think that they will do a court packing, and, at the same time, they are rightly quite fearful of moderates and non-leftists thinking that they want to pack the court,” Kengor told the Register. “They’re trying to straddle the fence here.”
Announcing plans to pack the court could also energize reluctant Trump voters, according to Kengor.
“This would really drive the vote for Donald Trump,” Kengor said, referring to some Republicans who are Catholic and who aren’t comfortable backing Trump. “If they think Biden and Harris will pack the court, they will put on their sneakers and run to the polls to stop something like that.”
Biden has announced that, if elected, he would form a commission to study the “reform” of the Supreme Court.
“What Biden wants right now is options,” said Mark Graber, a professor at the University of Maryland Carey School of Law and a leading scholar on constitutional law. “It’s a good game strategy. A lot of times when you play a game you don’t really want to commit yourself. You want to have as many options as possible and reduce the number of options your opponent has. That’s what Biden is doing now.”
For example, hours before Barrett’s confirmation on Monday, Biden floated the idea of rotating justices as an alternative to traditional court packing.
The Political Dynamics
“A majority of the Democratic Party is probably ready for court packing, but the country isn’t,” Graber said. Biden knows that — and he’s also aware that the country is close to being ready for it, Graber added.
An Oct. 15-18 New York Times/Siena College poll found that a majority of Democrats supported court packing, with 57% in favor and 27% opposed. But among all voters, it was opposed by a 58%-31% margin.
The political dynamic could shift in favor of court packing if a Biden administration passes comprehensive legislation — such as a new health program or election reform — that gets struck down by the Supreme Court, according to Graber.
“Now more Democrats, including probably Biden, are going to become radicalized, and we may well see a more aggressive court-packing scheme,” said Graber, who identifies as a center-left Democrat.
Kengor said that Democrats are more inclined to engage in court packing because of their more expansive view of the Constitution as a “living document” that evolves and can be adapted to the times.
“They were able to read into the Constitution a right to an abortion through a right to privacy that isn’t even laid out in the Constitution,” Kengor said.
“Any group that would do that with … a matter of life and death like abortion — believe me, I don’t think they’d hesitate to try to do it with court packing, especially when the main reason for them wanting to pack the court is Roe, Roe, Roe. Or let me put it another way — abortion, abortion, abortion,” Kengor added. “That’s what this is all about.”
“It’s really, I think, quite sad, quite tragic that one party is willing to pack the court simply to save and sustain the so-called ‘right to abortion,”’ he said.
A Democratic-packed Supreme Court would continue to overturn state laws aimed at limited access to abortion, such as its recent rejection of a Louisiana law that would have required physicians doing abortions to hold admitting privileges at local hospitals, according to Graber.
Currently, with Coney Barrett sitting on the court, there’s a “real possibility” that it could overturn or curtail Roe v. Wade. However, if Biden is able to add justices to the current nine, that would maintain the status quo, Green said.
“It’s what the court would not do that would be almost as significant as what it would do,” Green added.
Religious-Liberty Concerns
Kengor said that a court with Biden appointees would also hand down decisions that restrict religious liberty. He points to the 2019 Bladensburg Cross case, in which an atheist group sued to effectively have a cross removed from a World War I memorial on state property in a Maryland suburb. The court said the cross could stand on a 7-2 decision, with Justices Ruth Bader Ginsburg and Sonia Sotomayor the two dissenters. Kengor said cases like those could shift against religious-freedom advocates in a packed court.
But Graber said he thinks a more liberal court won’t necessarily rule against religious freedom.
“Wedding cakes aren’t my big issue,” Graber said, referring to the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court said a baker did not have to bake a cake for a same-sex wedding. “I’m not big on forcing people to bake cakes when, in fact, there’s another guy right down the street willing to bake the same cake for the same price. So on that one I think Democrats are genuinely mixed.”
(The Bladensburg Cross case also illustrates the divide among Democrats over religious freedom. While Ginsburg and Sotomayor ruled in favor of limits, Kengor noted two other Democratic-appointed justices sided with the conservative majority in the Bladensburg case — Justices Stephen Breyer and Elena Kagan.)
Court packing also could have long-term political ramifications beyond the outcome of individual cases. Kengor warns that Democratic court packing could launch a political version of a Cold War-style arms race. Although conservatives may be more reluctant to change the number of justices, Democrats may force their hand.
“If the Democrats were to add four seats like that … you’d almost have to respond by adding four,” Kengor said.
Expanding the number of justices could also backfire with the electorate — although the record of history is mixed, Graber noted. While FDR faced blowback within his own party, Republicans repeatedly tweaked the number of justices in the 19th century without any negative political fallout, according to Graber.
Other Issues’ Impact
If Biden is elected and ends up backing court packing, he said voter perceptions could be driven by Biden’s overall performance as president, which Graber says will be decided by what happens with the economy and the COVID-19 pandemic. If the economy recovers and the pandemic recedes, voters may look more favorably upon any court reforms he initiates, according to Graber. “The story is: ‘Yeah, the court was out of whack. Biden did the right thing.’”
On the other hand, a worsening pandemic could change the narrative. “Now the story is: ‘We have to undo this horrible thing he did,’” Graber said. “An amazing amount of the reaction to any Democratic court-packing plan will be determined by reactions to the Democrats more generally.”
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