On October 1, according to The Washington Free Beacon’s Andrew Kugle, Democratic candidate Alexandria Ocasio-Cortez, who is running in New York’s 14th Congressional District, said that Democrats should “pack the Supreme Court” in the wake of the nomination of Brett Kavanaugh:
AUDIENCE MEMBER: If in a few months from now, the Supreme Court looks like I’m pretty scared it’s going to – a court that would overturn Roe and make the president above the rule of law – what is to be done?
OCASIO-CORTEZ: I think that we take back the House, we take back the Senate, we take back the presidency, and we pack the Supreme Court of the United States of America. Next!
The notion of “packing” the Supreme Court isn’t a new one.
Article III, Section 1 of the United States Constitution establishes a Supreme Court, reading: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
Because the text of the Constitution doesn’t mandate a specific number of Supreme Court justices, it was up to Congress to decide how many individuals would serve on the unelected body.
History offers a succinct summation of the various changes to the Court over the last 230 years:
The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since.
In 1937, President Franklin Delano Roosevelt proposed the Judicial Procedures Reform Bill, which would allow for additional justices to be appointed to the Supreme Court for each standing justice who was older than 70 and who had already served on the bench for at least ten years. Many saw this as a reaction to the Supreme Court striking down certain provisions of FDR’s New Deal.
Four months after the president announced his plan, however, the Senate Judiciary Committee rejected it, writing a scathing letter, which reads in part:
[The bill] applies force to the judiciary and in its initial and ultimate effect would undermine the independence of the courts.
It violates all precedents in the history of our government and would in itself be a dangerous precedent for the future.
The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people’s consent or approval; it undermines the protection our constitution system gives to minorities and is subversive of the rights of individuals…
This bill is an invasion of judicial power such as has never before been attempted in this country…
This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown! This, then, is the dangerous precedent we are asked to establish…
We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle. …It is a measure, which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.
With the nomination and subsequent appointment of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, some progressives are calling for the next Democratic president to pack the court. However, as it was noted by the Senate Judiciary Committee in 1937, and repeated by legal scholars today, including Ilya Somin, the notion of court packing could prove to be a “menace to the role of judicial review as a check on the power of political majorities.”