By Dora Mekouar
As Republicans rush to confirm Amy Coney Barrett, President Donald Trump’s pick to replace the late-Justice Ruth Bader Ginsburg on the U.S. Supreme Court before Election Day, some liberal Democrats are floating the idea of adding more seats to the court — beyond the current nine.
The number of justices has changed over time, from six to as many as 10, but the number has remained steady at nine since 1869. In the 1930s, President Franklin D. Roosevelt tried to pack the court to preserve his New Deal legislation, which kept getting struck down by the high court. He failed.
If Democrats capture the White House and Senate, while retaining majority control of the House of Representatives, there is no constitutional impediment to following through on the idea.
“There’s nothing in the Constitution that says that the Supreme Court has to have one or two or five or 10 members,” says Calvin Schermerhorn, professor of history at Arizona State University. “It’s silent on how many members there are on the Supreme Court. It only says that there shall be a chief justice, and Congress will have the power to shape the court and configure them in the best interest of justice.”
Democrats would have to change filibuster rules in the Senate to lower the threshold for passing legislation from 60 votes to a simple majority of the 100-member chamber to change the number of justices on the high court.
Democratic presidential nominee Joe Biden has declined to say whether he would support an expansion of the Supreme Court if he wins election and the Democrats take back control of the Senate, but has promised to reveal his position before Election Day.
Expanding the court for political reasons could damage the integrity of the Supreme Court, says Nicole Huberfeld, professor of law at Boston University.
“People worry already about whether the Supreme Court is a political actor, rather than apolitical. I do think that adding justices so that one president can appoint a whole bunch of justices could affect the institutional integrity, or at least the perception of institutional integrity,” she says.
“The authority of the court largely comes from respecting the decisions of the justices, and the court of itself doesn’t actually have any way to ensure that its decisions are implemented,” Huberfeld adds. “If people stop thinking that’s the law of the land, then the court has an institutional integrity problem.”
Most Americans trust the U.S. Supreme Court to act in the best interests of the nation, according to public surveys, but an increasing number of people do worry justices are becoming too mixed up with politics.
Although a politicized Supreme Court might be alarming to some today, the scenario would be familiar to the nation’s Founding Fathers, because the court was viewed as an extension of party politics in the 19th century.
“The first generation of American leaders, by the so-called founders, used the courts as a creature of the legislature. And so, the federal judiciary, especially, was supposed to be subordinate to the will of democratically elected representatives,” Schermerhorn says.
The Republican effort to fast-track Barrett’s confirmation is particularly galling to Democrats still steaming because Republicans successfully blocked the 2016 confirmation of Merrick Garland, President Barack Obama’s pick to replace Justice Antonin Scalia, early in an election year. Now, the Republicans are rushing to confirm Barrett just days before another presidential election, which would create a solid 6-3 conservative majority on the Supreme Court.
But again, Schermerhorn says, none of that would have fazed the nation’s founders.
“They would have understood this is as partisan combat and not as a matter of constitutional principle,” he says. “There would have been no hesitation for the party in power in doing exactly what Majority Leader Mitch McConnell has done in his tenure as leader of the Republican-controlled Senate. That’s not to say that this is a model that ought to be followed, that just because the founders thought or did something means that it’s worthy of emulation.”
Huberfeld says it is important to remember that there is more to the high court’s work than the few cases that draw the most attention and controversy, such as those dealing with health care, abortion or LGBTQ rights..
“The way that the court decides cases is much more than the handful of cases that people tend to talk about in political conversation. There are many cases the court hears that are just basic statutory interpretation. There are many cases the court hears that are criminal procedure cases,” she says. “Typically, at least in the modern era, once people are appointed, they tend to take that appointment quite seriously and to sort of put politics behind them.”
She points out that justices don’t always rule as expected. For example, conservative Scalia’s interpretation of the Constitution led him to be protective of the rights of criminal defendants. While Trump appointee Neil Gorsuch wrote the majority opinion that gay and transgender workers are protected by the Civil Rights Act.
“So, I think the question before the court isn’t always a matter of this political ideology that people ascribe to the justices. It’s much more a matter of what the question is before the court and how the judges interpret it,” Huberfeld says.