Chief Justice of the United States John Roberts on February 7, 2023, in Washington. Jacquelyn Martin/Pool via REUTERS
During former President Joe Biden's four years in the White House, many critics of the U.S. Supreme Court's GOP-appointed 6-3 supermajority proposed packing SCOTUS with additional seats — an idea that Biden rejected. But Reason's Damon Root predicts that the proposal will likely make a comeback if Democrats retake Congress in the 2026 midterms.
"After his election in 2020," Root explains in the libertarian Reason, "President Joe Biden faced enormous pressure from progressive activists who wanted him to expand the U.S. Supreme Court by packing it with a supermajority of new liberal justices who would be ready, willing, and able to override the Court's conservative majority. Yet Biden consistently resisted such pressure. Why? Perhaps it was because Biden agreed with liberal Justice Ruth Bader Ginsburg, who said it 'was a bad idea when President Franklin Roosevelt tried to pack the Court' in 1937, and it would be an equally bad idea to try again. 'If anything would make the Court look partisan,' Ginsburg said, 'it would be that — one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'"
Root continues, "Or perhaps it was because Biden agreed with liberal Justice Stephen Breyer, who similarly concluded that Court packing would be a race to the bottom that erased whatever credibility and independence the Supreme Court had left[.] Whatever his reasons, Biden held firm in his anti-Court-packing stance throughout his single term in office."
According to the U.S. Constitution, the High Court doesn't necessarily have to have nine justices. And President Franklin Delano Roosevelt, frustrated because the Hughes Court was striking down parts of his New Deal as unconstitutional, favored expanding the Court to as many as 15 justices. But the Judicial Procedures Reform Bill of 1937, described as the pro-FDR "Court-packing plan," was defeated in Congress.
Root argues that because the High Court is so unpopular, "debates" over Court packing will likely resurface.
"Court packing 2.0 may not be inevitable," the libertarian writes, "but it does seem increasingly likely to come up for serious debate in a future Congress. One reason why is that the Supreme Court itself has become increasingly unpopular and distrusted. Indeed, according to a new Washington Post-Ipsos poll, 'more than half of Americans disapprove of how the Supreme Court is doing its job, while 46 percent believe that the Court is ruling on President Donald Trump's policies based on ideology rather than the law.'"
Root continues, "In other words, if enough people believe that the Court no longer has any credibility or independence left to lose, then those people won't be persuaded by any Ginsburg-Breyer type of arguments against court packing. For Democratic politicians and the voters who elect them to office, that kind of fundamental distrust of the Supreme Court only seems to be gaining steam."
