Democrats are considering adding seats to the Supreme Court if they should win control of Congress and the presidency in the next election. While this would not be unconstitutional, it would break with over 150 years of precedent. It would be an affront to responsible governing, endanger the health of our Republic, and would fuel the flames of our increasing national division.
Following the passing of Justice Ruth Bader Ginsburg last month, Republicans have begun the process to replace her with a conservative nominee, Amy Coney Barrett, that would solidify a conservative 6-3 Supreme Court majority for the foreseeable future. Democrats are livid over the appointment of a judge in the final months of an election year after Republicans proclaimed in 2016 that filling a Supreme Court vacancy during an election year should wait for the next president. Understanding the frustration, there still isn’t a justification for a radical institutional restructuring of the Supreme Court. Justice Ginsburg herself opposed packing the court saying doing so “would make the court look partisan.”
The number of Supreme Court Justices may not be written in the Constitution but is long established precedent. The original Supreme Court started out with 6 Justices and later increased to seven, and as high as ten, before President Grant and congress in 1869 settled the court at 9 Justices. President Franklin Roosevelt, in an effort to combat opposition to The New Deal, was the last president to attempt an increase of seats on the Supreme Court. He proposed that for every justice over 70, one seat should be added, up to 15 justices. This didn’t gain much support, even within his own party, in part because of the drastic partisan reformation of a bedrock institution. From The New Deal to The Green New Deal, packing the court is about power to push your political agenda through the arbiters of law.
A foundation for a healthy republic includes a separate independent judiciary, packing the court would endanger our nation. Attempts to pack the court are a blatant political power grab of an institution designed to be apolitical and will inevitably lead to the overt politicization of the nation’s judiciary branch. It would establish the norm that any time your party isn’t in control of the court, but is in control of congress and the presidency, you should alter the court’s makeup to gain more votes for your agenda; thus, ending any political independence the court now possesses.
It’s hard to see how a majority of the nation would be comfortable with a Democratic Congress pushing through a massive institutional restructuring on a partisan line. It would be irresponsible governing by politicizing the judiciary branch and serve to further divide our country.