He Said, She Said: Court Packing

The purpose of the series “He Said, She Said” is to create a respectful environment for differing stances on current controversial issues.

Introduction:

Months ago, former President Donald J. Trump nominated Federal Circuit Judge Amy Coney Barrett to the Supreme Court of the United States. She was confirmed to the Supreme Court as an Associate Justice on October 27th, 2020. The addition of Justice Barrett contributed to a 6:3 conservative majority.

There is no text in the Constitution that prevents the addition of Supreme Court justices, but Congress can change this by advancing an act that has to be signed by the sitting president. The first incarnation of the Supreme Court was established with the passing of the Judiciary Act of 1789, which issued six justices to the high court. The number of justices on the Supreme Court shifted in the early nineteenth century during the presidencies of John Adams and Thomas Jefferson. During the mid-nineteenth century, the justice count on the Supreme Court fluctuated, and eventually returned to the count of nine justices that we have today. President Franklin D. Roosevelt proposed the Judicial Procedures Reform Bill in 1937, which suggested the addition of justices to the Supreme Court, but this plan ultimately failed.

Supporters say that packing the court will ensure that the unethical promotion of Justice Barrett will not undermine the democratic principles of the United States. Opponents say, court packing is a radical proposal to unfairly overthrow the partisan majority of the court that was achieved justly and through due process.

He Said:

Court packing is a ridiculous attempt to gain political power unjustly and a last minute solution to dissolve a fair and just majority. During his tenure, former President Trump had the full right to nominate Associate Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court of the United States. He fairly did this within the boundaries of his power as president, therefore legally changing the makeup of the court in the favor of the Republican Party. Outraged by the president’s opportunities and actions of appointing three justices to the high court in one term, many support court packing in order to balance out the party demographics of the justices. However, this “cheats” the system in order to increase political power, no matter which political party attempts this. 

In order to better understand the absurdity of court packing, I’ll use an analogy. Imagine you are playing your favorite game, and you are losing. Instead of waiting until you will have leverage over your opponent, you just rewrite the rules of the game in order to win. The same can be said about court packing; the Democrats have realized that they are losing the game that is the Supreme Court due to the fact that Republican justices outnumber them by double. Instead of waiting until they are in power, Democrats propose rewriting the rules and adding additional justices unjustly in order to win the “game.”

If either party turns to court packing as their solution to “fixing” one party’s majority, they will undermine the democratic principles of justice and the judiciary-the system that was put in place to resolve conflict and legal disputes. In essence, the goal of court packing was to change the political makeup of the court, and the contradictory solution is by adding more partisan justices, now just in one party’s favor. Therefore, the United States must firmly keep its nine justice Supreme Court, in order to prevent political games from threatening and overthrowing the fair majority of the court. The traditional demographics should be ensured, and one party should not be given additional justices on the court for the mere reason they are down a few in a fair system. 

As many political leaders have pointed out, packing the Supreme Court is just another absurd partisan attempt. Texas Senator Ted Cruz warned Americans to not “be fooled by Democrats’ hyperbolic rhetoric,” and explained that “packing the court means one very specific thing: expanding the number of justices to achieve a political outcome. It is wrong. It is an abuse of power.” As highlighted by Cruz, court packing is an unjust, last minute, attempt to gain power unlawfully. 

Additionally, even Senator Joe Biden denounced court packing. In a 1983 hearing, Biden called President Franklin D. Roosevelt’s attempt to pack the Supreme Court a “bonehead idea.” He continued by stating that it was: “a terrible, terrible mistake to make, and it put in question, for an entire decade, the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America.” As Biden called attention to in this statement, packing the court would also threaten the balance and separation of powers, to which this country’s governmental systems so heavily rely on. Building off of history, Biden’s quote shows that some Democrats also view court packing as an unnecessary manipulation to acquire political advantages.

Although opponents would argue that packing the court is not a new idea, they usually fail to mention the fact that it still remains a radical idea. Currently, packing the court is only supported by only the most progressive members of the Democratic Party. Radical left-wing representatives like “Squad” members Alexandria Ocasio-Cortez and Ilhan Omar are some of the only Democrats that openly support court packing. The reason that the mainstream Democratic party does not support court packing is because they know that it is a preposterous and unjust proposition that could cost them political power. This was seen in the results of the 2020 Congressional Elections, where Democrats came very close to losing their majority in the House of Representatives. The fact that court packing remains a progressive ideology favored by few, shows how uncommon and abnormal it really is, and reiterates my argument to how it should never belong in our republic.

The opposing argument often claims that the American people should decide the fate of the Supreme Court, and whether to add additional justices or not. Just like any other president in history, former President Trump had the full rights to appoint justices to the court that fit within his beliefs. In other words, it has been tradition that Supreme Court Justices are appointed by the President of the United States, who was elected by the people to represent them for four years, not three and a half. In a New York Times and Siena College poll, 58% of respondents stated that the size of the court should not be increased, where just 31% responded that the court should be filled with additional justices. So if you were to let the American people decide whether to pack the Supreme Court of the United States, they would overwhelmingly denounce it, as seen through these statistics which numbers well outside the poll’s margins of error.

Adversaries frequently speculate on how the confirmation of Associate Justice Amy Coney Barrett would affect certain groups of people. Going off topic, they conjecture on the potential decisions that the credible academic may make on the bench, instead of citing solid reasons why packing the court would be beneficial.

Court packing would also sabotage the process of judicial review, whose role is featured prominently in Alexander Hamilton’s Federalist No. 78. The opposition claims that this information is outdated, but I beg to differ. Hamilton, along with the other great minds that built this country, established and proposed ideas for some of the most important institutions today, and their accomplishments and wise ideas paved the way for generations to come and are still applicable to modern day problems.

As seen in the evidence and analysis above, court packing theory blatantly disregards the visions that the founding fathers had for our great constitutional republic. After all, the Supreme Court of the United States has had a total of nine justices since 1869, so why change it now over 150 years later? The late liberal Associate Justice Ruth Bader Ginsburg said that “Nine [Justices] seems to be a good number. It’s been that way for a long time.”

She Said:

After serving a remarkable thirteen years on the Supreme Court, the Honorable Ruth Bader Ginsburg has been replaced with the controversial Justice Amy Coney Barrett. Regardless of the current president, the issue regarding packing the court faces two obstacles, one being the realistic ability to pass an increase in justices, and secondly, the morality of the decision. Court packing is a historical decision but one that will ensure that the American people have their voice heard and represented through the Supreme Court. 

What some call a “changing of the rules” has already been established through written legislation submitted by Franklin D. Roosevelt. Although this did not pass, the concept of adding up to 15 justices has already seen support. Packing the court is by no way a new or radical idea, as this concept was not only seen, but supported in 1937. The change of legislation and addition of justices is the natural evolution of a democratic state. This evolution is inevitable, especially in such turbulent times when civil rights and women’s rights are at the forefront of the conversation. As former President Trump stated, “What separates the winners from the losers is how a person reacts to each new twist of fate.” The people are being met with a new twist of fate and we must respond accordingly. The application of this legislation would undoubtedly meet opposition from the congressional committee as well as the general public, but we must pursue this line of inquiry. 

Regardless of the possibility of accomplishment we must address the ethical question. This kind of question is hard to address, but I look to the general behavior of the two parties for an answer. The opponent clearly supports the idea that packing the court is an unethical changing of the rules. Their analogy is nothing more than a logical fallacy. 

This analogy employs a false equivalency, relating the Supreme Court to a game which can be won or lost and the Constitution to the rules of said game. The court has not been changed in 150+ years, so it’s clear that this complex issue goes far beyond a winner and a loser. The Supreme Court is not something to be won but it is something to be honored with respect and reserve with a focus on nonpartisan justices. The comparison of the highest court to a simplified game is not only unfair but shows a lack of judgement. What the adversary fails to mention is that the initial “rules” that were set for Obama were then dismissed for Trump. I propose this question, have you ever played a game where the referee changes the rules half way through? In the beginning half of this hypothetical game, former President Obama was refused an appointment nine months before the election date. This decision was made on the basis that the next president should elect the justice to give the people an indirect say in the nomination process. In the second half of the game, the referee, in this case the Senate, allowed for Trump to appoint a justice during the election. In this analogy, the initial rules were altered to favor former President Trump, so no wonder the other “team” seeks to right the wrong through the packing of the court. 

“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide,” Mitch McConnell, the Republican Senate majority leader, declared when Obama sought to nominate a Supreme Court Justice. There is no written rule that determines the applicable timeline to the nomination of a justice. During the 2016 election the precedent was set that a nominee could not be appointed within a year of the election.  Lindsay Graham, a head Republican Senator explicitly stated that, “We are setting a precedent here today, Republicans are, that in the last year… you’re not going to fill a vacancy of the Supreme Court.” Furthermore, Lindsay Graham goes as far as to say, “That’s going to be the new rule. When y’all changed the rules… I thought it was a really abuse of power.” This quote speaks for itself, the appointment of this justice during an election was an abuse of power. 

Within weeks of the 2020 election, that precedent was dismissed and the nomination of Amy Coney Barrett was accepted. This hypocrisy and denial of precedent only highlights the “changing of the rules.” So let us answer that call. Let us, the American people, decide the legislation and ultimate fate of this country. 

Former President Trump nominated and approved a conservative justice just weeks before an increasingly divisive election in which he would lose, and refuses to admit defeat. Let’s not pretend that the nomination of Justice Barrett was anything but the last political Hail Mary before a close and tense campaign in which Donald J. Trump would lose.  

The Americans have the right to vote in a president who nominates the justice to represent the United States, not just the ideals of the Republican Party. The argument could be made that if Donald Trump had won the election he had every right to nominate this Justice, but he didn’t. He did not win, and the American people have spoken. The majority of the country, both in electoral votes and popular votes, do not want Donald Trump to lead the U.S., which includes the responsibility to select justices. 

In the opponents previously said argument, there is a hyperfixation to conserve this distorted version of what our Founding Fathers wanted for our country. The time for change is now, and we the people have a fundamental duty to carry out what our Founding Fathers wanted in application to modern time. As James Madison historically remarked in his Report of a Constitution or Form of Government in the year 1779, “Government is instituted for the common good…” and “not for the profit, honor, or private interest of any man, family, or class of men.” Furthermore, the diversity of representation seen within our current political climate is drastically different from that of the white, male, land owning population that the Founding Fathers accommodated when writing our Constitution. It is the God given right to vote and to be heard and that is the power of the American people. 

The opponents evidence embodies The Federalist Papers written in 1788 and an oversimplified version of the Supreme Court. The use of the word “radical” and the fear mongering that Ted Cruz and Donald Trump are notorious for will not stand. The issue of packing the court exceeds a party issue but goes to the standing of America’s democratic foundation.  It is not our place to assume the standings of the American people nor is it the place to divide this country further.  

No longer will the American voice be disparaged. The packing of the court should undergo a direct referendum to reflect the voice of the American people, the voice that was dismissed by our incumbent President Donald Trump. Whether the American people decide for or against packing the court, our voice will be heard. According to Gallup Polls, 46% percent of people are not in favor of the Amy Coney Barrett nomination. This 46% percent is the highest disapproval rate in thirty three years. This poll only highlights the political division between our people. Let’s not assume the position of Americans, let’s offer a direct referendum which would give the opportunity to embody what the citizens of the United States want. 

Amy Coney Barrett was Donald Trump’s choice, not the American peoples and now it is our time to protect the values of both the majority and minorities that create the diversity so celebrated by the American people. Change is natural with the progression of time, and this change will protect the lives and validity of minority groups and the free voice that Americans have fought so hard to keep.

Conclusion:

As the late Senator John Lewis famously said, “Democracy is not a state. It is an act,” It is the responsibility of the United States to create legislation that favors the majority. In order to find this majority we must compromise. Common ground is the foundation for a good compromise. Our compromise may start with maximum caps on term lengths, a higher dependency on smaller circuit panels to rule on a higher number of cases, and the removal of partisan politics from the Supreme Court altogether. 

A possible change would be the addition of term caps which would limit the number of years a sitting judge can serve as well as the inability to be reelected. This would help to prevent and possibly remove party bias from those sitting on the court. 

Oftentimes cases sit in line and are ignored by the Supreme Court because of the lack of space and lower level conflict. With the addition of smaller circuit courts these sitting cases can be judged and the overall judicial system will work in further cooperation. 

Another possible settlement would be the removal of  justices that directly associate with a political party. Although this leans closer to the unrealistic side of solutions, this would help to alleviate partisan tensions and operations, and increase the justices adherence to the Constitution rather than their political party.

The beauty of a democracy lies within the convergence of differing opinions to meet at a majority ruled agreement. These compromises fund the growth and development of the United States and it is invaluable to the democratic processes of our great republic.