This week, Amy Coney Barrett begins her life-tenured appointment as the newest Supreme Court Justice. If she lives as long as did Ruth Bader Ginsburg, whom she replaces, she could serve on the Court for four decades. Barrett’s confirmation may be the last act of a Republican majority for years. In Barrett’s first days as a Justice, the election results will likely flip the party of the President and of the Senate that swiftly confirmed her. Indeed, as it became increasingly clear this fall that the Democrats would probably win the Presidency and both houses of Congress, it became all the more important for the Republicans to push through a Court confirmation while they could. As Mitch McConnell, the Senate Majority Leader, put it, on Sunday, “a lot of what we’ve done over the last four years will be undone sooner or later by the next election,” but Democrats “won’t be able to do much about this for a long time to come.” Democrats certainly can’t undo Barrett’s appointment to the Court, but with the expectation of being able to wield power soon, they have stepped up a discussion of “court-packing,” in order to undermine a 6–3 conservative majority that otherwise may be entrenched for a generation.
Some have protested that court-packing would be an abuse of power, but political maneuvering over Court seats dates to the beginning of the country. When Congress established the Supreme Court, in 1789, it stipulated that the Court should have six Justices. Twelve years later, Thomas Jefferson won a bitterly fought campaign against President John Adams, and control of Congress flipped from Adams’s Federalist Party to Jefferson’s Democratic-Republicans. During the lame-duck Congress, the Federalists attempted to hold onto some power by legislating that the next Justice to retire would not be replaced, reducing the Court’s total number to five. But Jefferson and the new Congress changed the number back to six and eventually added another seat. During the following decades, the number of Justices rose to nine, and then to ten, and then came back down to nine. Congress has kept the same number of Justices since 1869, but it is not constitutionally fixed, and history has shown that it is Congress’s prerogative, subject to the President’s veto, to add to or subtract from the seats on the Court.
With that knowledge, President Franklin Delano Roosevelt famously proposed his court-packing plan. He did so, in 1937, in the midst of the Great Depression, out of desperation. In an evening radio address, F.D.R. described the three branches of government as “a three-horse team,” and said that “two of the horses are pulling in unison today; the third is not.” That third horse was a conservative, aging Supreme Court, which kept striking down progressive measures enacted by Congress and the F.D.R. Administration to address the dire economy and protect vulnerable workers. The Court had invalidated emergency New Deal legislation that authorized the President to regulate industries’ maximum work hours and minimum wages and that affirmed labor unions’ rights to organize. The Court had similarly struck down federal laws regulating hours and wages in coal mines and requiring railroad companies to provide retirement and pension plans for employees. F.D.R. declared that “we must take action to save the Constitution from the Court and the Court from itself.” He proposed to “infuse new blood” into the courts, in order to prevent “hardening of the judicial arteries,” by introducing legislation that would allow a new judicial appointment each time a Justice or a federal judge reached the age of seventy and chose not to retire.
What happened next is instructive today, as panic about the potentially radical conservatism of a new six-Justice majority has brought court-packing ideas back into vogue. Within weeks of F.D.R.’s proposal to pack the Court, one Justice who had initially sided with the conservative bloc, Owen Roberts, switched his vote in a key constitutional case, so that, instead of striking down a Washington State minimum-wage law, the Court upheld it. In short order, the Court upheld important New Deal measures on unfair labor practices and Social Security. Congress then failed to pass the court-packing bill, which would have added as many as six Justices, and left the Court intact. It is widely believed that what became known as the “switch in time that saved nine” ushered in an era in which court-packing was no longer perceived as necessary.
While the court-packing plan was being debated in Congress, Chief Justice Charles Evans Hughes, a swing vote on the Court, opposed it as a menace to the integrity of the institution in a letter that was also approved by Justice Willis Van Devanter, a conservative, and Justice Louis Brandeis, a liberal. If Congress once again considers court-packing, it would not be surprising if some of today’s Justices voiced similar objections. One likely candidate is Chief Justice John Roberts, who once rebuked President Trump’s partisan view of the courts by insisting that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” If Democrats were to increase the number of Justices at this politically polarized moment, in reaction to the highly contentious and partisan events that brought us the past three Court appointments, it would not merely dilute the power of the current conservative bloc. It would also constitute such a frank acknowledgement of partisanship as the main determinant of the Court’s decisions that even the tiniest fig leaf protecting the Court’s remaining aura of impartiality would be ripped away. Whether liberal or conservative, Justices have an institutional and personal interest in keeping that fig leaf. Justice Ginsburg did not mince words when she told NPR’s Nina Totenberg, in 2019, “If anything would make the Court look partisan, 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.’ ”
Joe Biden appears to be channelling a similar mind-set in stopping short of endorsing court-packing. In an interview on “60 Minutes,” which aired on Sunday, he said, “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” Having previously indicated that he was “not a fan” of court-packing, Biden promised that, if elected, he would convene a bipartisan commission of constitutional scholars to recommend court-reform ideas, including “a number of alternatives that go well beyond packing” the Court. Such other options may include term limits. Last month, House Democrats introduced a bill that proposes a new Supreme Court appointment every two years, for a nonrenewable eighteen-year term. The current Justices would be exempted from the term limit and retain their life tenure, but the two-year cycle would take effect immediately without regard to their retirements. The Constitution clearly does allow Congress to determine the number of seats on the Supreme Court. But any proposal to limit Justices’ terms through legislation, rather than a constitutional amendment, would have to contend with the long-established reading of Article III’s statement that federal judges “shall hold their offices during good behaviour” to require life tenure.
Another proposal that a commission might consider is a requirement that Court decisions be made by a supermajority, rather than a bare majority of five Justices. That reform would reduce the Court’s power by making it harder for it to act, but its constitutionality would also be debated if it were attempted by mere statute. Yet another proposal, which perhaps strikes deepest into the heart of the Court’s power, is called “jurisdiction stripping”: Congress could legislate to remove certain controversial subjects from the purview of the federal courts. The effect would be to take some power away from the Court and place more power in the political branches, by freeing those branches to act without the prospect of the Court striking down their efforts. The uphill climb for these proposals is that Americans tend to envision the Court as properly stepping in to protect rights from across the political spectrum, from the right to have an abortion to the right to bear arms, by invalidating legislative or executive actions that impinge on them. And if any of these reforms are enacted, we can expect a pitched battle of constitutional litigation about them, with the Court being asked to decide, self-reflexively, whether it is constitutional for other branches to strip its power to have the last word on what is constitutional.
As Justice Barrett moves into the chambers that she will occupy for as long as she wishes, she will immediately immerse herself in questions pending in the Court this term, which include the legality of the Affordable Care Act; Trump’s attempt to exclude undocumented immigrants from state population counts for apportioning House seats; Trump’s ability to use military funding to pay for his border wall; and, of course, an onslaught of litigation on voting in the election, which may well include contesting the election results. In the coming months, a jaded public will be on the lookout for signs of partisanship from Barrett in particular, and from the Court as a whole. How the Court comports itself at this fragile time will affect its future ability to help secure the public’s faith in stable and democratic government under the rule of law.
The Court’s decisions this term may also strengthen or weaken the impetus for a Democratic Congress and President to push reforms to limit its power. Biden and the Democrats have reason to fear that pursuing the court-packing path could lead Republicans to eventually retaliate, which would be to the ultimate detriment of the institution of the Court and the legitimacy of its decisions. But a Supreme Court with a vested interest in avoiding new constraints on its own power has to take seriously the threat of growing support for court-packing or term limits. Under this credible threat, it would be surprising if a majority of Justices were to give legal effect to extreme views over a more moderate approach. It would be particularly unexpected if the Court were to invalidate the entirety of the Affordable Care Act. Arguably, the Court’s previous upholding of that law, in 2012, and its decisions this past spring, with one or more conservative Justices voting with the liberal Justices, on abortion, immigration, Trump’s financial records, and gay and transgender rights, have already begun the longer-term maneuvers to protect the Court’s power—through limited moderation if not any outright “switch.”
Ironically, in order to attempt to demonstrate that the Supreme Court is independent of politics, the Justices will need to be attentive to the realities of this political moment. F.D.R. said that what we should want is an independent judiciary, but added that “it does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.” If today’s majority-conservative Court does not show early signs of moderation, it is altogether possible that court-packing will become a historic fact of the twenty-twenties. This possibility can be seen as pressure, coercion, or threat; regardless, it will lead to a negotiation between the Court and the other coequal branches under the power relations distributed by the Constitution, elections, and democracy. The dialogue begins in earnest now, with the confirmation of Justice Amy Coney Barrett.
