Posted by 09 October 2020
The number of Supreme Court justices has become a flashpoint of disagreement between Republicans and Democrats this election season.
Some liberals are calling on Joe Biden and Kamala Harris to embrace the idea of expanding the Supreme Court if they are elected in November. They argue that since Republicans are intent on pushing through the nomination of Amy Coney Barrett prior to the election, then President Biden should support increasing the number of justices. They say this is a way to fix the conservative tilt that the high court will likely have for decades to come.
Republicans argue this is playing politics with the Supreme Court, and have called on Biden and Harris to promise not to engage in what they call "court packing." So far, however, both members of the Democratic ticket have demurred.
The idea of expanding the Supreme Court’s membership in response to a disagreement over its ideological makeup was prominently championed by President Franklin Roosevelt in the 1930s. Upset by court decisions invalidating part of his New Deal legislation, President Roosevelt suggested expanding the number of Supreme Court justices. There was an uproar in opposition to that idea, and Congress never acted on it.
The current calls to increase the number of Supreme Court justices is not new. There was also support to do this in response to President Trump's prior two Supreme Court nominations. At the time, these liberals contended that Senate Republicans’ played bare knuckle politics with their refusal to allow a vote on President Obama’s nomination of Merrick Garland and to approve Brett Kavanaugh in light of sexual assault allegations. They argued that these two actions were illegitimate, so it would be only right to counter them by expanding the court’s membership when Democrats regain the White House and Congress.
Opponents of court packing argue that once this process starts, it will lead to an ever-larger number of justices appointed for purely political reasons. They note that if Democrats expand the court’s membership when they control the presidency and Congress, then Republicans will do so when they regain both branches of government.
There are currently nine Supreme Court justices. This number is not set by the Constitution, so Congress and the president could pass legislation to alter it.
Should Joe Biden and Kamala Harris promise to oppose any efforts to increase the number of Supreme Court justices?