John Simon, Blog Editor, University of Cincinnati Law Review
With the 2020 presidential campaign in full swing, Americans have had the opportunity to view the Democratic contenders debate the issues on multiple occasions. While the candidates have addressed issues pertaining to healthcare, college education, and the environment, one key issue remains murky: the state of the Supreme Court and a possible attempt to reset the scales by packing the most powerful court in the United States.
In May of 2019, Senate Majority Leader Mitch McConnell, while speaking at a Chamber of Commerce luncheon in Paducah, Kentucky, remarked that if a Supreme Court seat opened up in 2020, prior to the potential election of a Democratic President, the seat would be filled. McConnell noted that, while government action is generally reversible, appointments to the federal judiciary are not: “What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law…[t]hat’s the most important thing we’ve done in the country, which cannot be undone.” These comments come three years after Senator McConnell blocked President Obama’s attempt to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia.
With both McConnell’s comments and a string of recent anti-abortion legislation being passed at the state level, various Democrats naturally have taken issue with who sits on the bench. This article will focus on the concept of court packing, its significance in United States history, and the plan presented by various Democratic candidates on the campaign trail.
II. Court Packing in U.S. History
While several accounts of the showdown between President Franklin Roosevelt and the Supreme Court of the United States exist—coined the “switch in time that saved nine”—the most popular begins with the election of Franklin Roosevelt in 1932. At that time, the Great Depression continued to debilitate the United States’ economy through crippling deflation, high unemployment rates, and low GDP. Roosevelt promised the American people a “new deal” transformation of the traditional “laissez faire” political philosophy ascribed to by the American government into a system focused on a government-regulated economy. Roosevelt’s “New Deal” sought to reverse the detrimental effects of the Great Depression. As Roosevelt took office in 1933, his New Deal became the focus for his administration. A significant portion of the New Deal was enacted within three months from Roosevelt’s inaugural day in office. The plan initially focused on providing temporary aid to the unemployed while also revitalizing business and agricultural communities. However, by 1935, nearing the reelection campaign, momentum stalled as the four conservative majority—known to Roosevelt as the “Four Horsemen”—gained the necessary swing vote from Justice Owen Roberts to overturn “New Deal” legislation.
Over the next year, leading up to the 1936 election, the Supreme Court, on multiple occasions, overturned such federal legislative acts and programs like the Agricultural Adjustment Act and the National Recovery Administration. In its final action of the 1936 term, the Supreme Court overturned a New York law that provided minimum wage to women and children.
In 1936, Roosevelt won his second election by a landslide. However, his victory was overshadowed by the fear that the Supreme Court would continue to undo legislative acts in furtherance of the New Deal. Recognizing that the Court stood as the final obstacle preventing the passage of additional New Deal legislation, Roosevelt recognized that a direct confrontation was necessary. At the same time, the public viewed the Supreme Court as an untouchable body; Roosevelt had to be cautious. Following the election, Roosevelt and his Attorney General Homer Cummings drafted the final version of the plan to change the composition of the Supreme Court of the United States.
In February 1937, Roosevelt finally unveiled his plan by proposing to Congress that he be permitted to appoint an additional justice to the Supreme Court for each member of the Court over the age of 70 who did not retire. Additionally, the plan called for additional lower court judges to be appointed. Roosevelt justified his plan by noting that a lack of judges had backlogged the judicial system. Roosevelt also relied on the issue of capacity, stating that “age or infirm judges” attributed to the problem, recognizing that while it was a delicate subject, it still merited dialogue.
While the country split evenly on the constitutional issue of whether Roosevelt could add justices to the Supreme Court, the matter seemingly resolved itself. In several decisions following Roosevelt’s proposal, the Supreme Court reversed course, voting 5-4 to find constitutional a state minimum wage law and the Social Security Act. Both swing votes—Chief Justice Hughes and Justice Roberts—sided with the liberal minority. With the majority now in favor of New Deal policies, Roosevelt could continue his agenda. Further, and more important, the proposed plan to pack the Supreme Court of the United States was not pursued as the issue had become moot.
III. Amending the Supreme Court Today
Several Democratic candidates have pitched the idea of reforming the Supreme Court. For instance, hopeful Pete Buttigieg, mayor of South Bend, Indiana, believes that five additional members should be added to the Court. In his opinion, the Court should be composed of five Republicans, five Democrats, and five members jointly selected by the sitting members of the Court. Former Representative Beto O’Rourke stated that justices should be afforded 18-year term limits. Senator Kamala Harris remarked that she would be open to the idea of adding justices to the Supreme Court, stating that “[t]he most critical issues of our lifetimes, before and in the future…will be decided by that United States Supreme Court.”
Left-wing groups and scholars also strongly support Supreme Court reform. For instance, Pack the Court, a liberal group which supports the addition of justices to the bench, has launched an aggressive campaign to catch the attention of Democratic candidates. Brian Fallon, director of Demand Justice, hopes to make the courts a key point in the 2020 election. Specifically, he has urged the candidates to support the notion of setting term limits for justices.
At the same time, the court packing plan being kicked around has been met with opposition, most notably from current Justice Ruth Bader Ginsburg. She told NPR that nine was a good number and that she thought “it was a bad idea when President Franklin Roosevelt tried to pack the court.” Justice Ginsburg added that the Constitution prescribes lifetime appointments for federal judges and that the Constitution cannot be easily amended. Thus, the proposals put forward by Democratic candidates, in her opinion, remain unrealistic.
With the Supreme Court growing more conservative and the current balance of power sitting 5-4 in favor of the conservative coalition, members of the Democratic Party have found it necessary to discuss ways of balancing the scales. With the 2020 election on the horizon, Democratic candidates have spoken publicly regarding measures that can be taken to reform the Court. While it’s unclear how court reforms may evolve in the future, the controversial issue will certainly be a point of concern as the campaign heats up.
Ted Barrett, In reversal from 2016, McConnell says he would fill a potential Supreme Court vacancy in 2020, CNN (May 29, 2019), https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html.
Joan Biskupic, Democrats look at packing the Supreme Court to pack the vote, CNN (May 31, 2019), https://www.cnn.com/2019/05/31/politics/democrats-supreme-court-packing-politics/index.html.
See Daniel E. Ho & Kevin M. Quinn, Did A Switch in Time Save Nine?, Journal of Legal Analysis (2010), https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259285/doc/slspublic/85.pdf (noting that the popular account of the story revolves around conflict between President Franklin Roosevelt and the Supreme Court whereby President Roosevelt threatened to reform the Supreme Court so that his “New Deal” policies would not be overturned. Yet an analysis of the decisions that “saved nine” shows that Justice Roberts voted consistent with his prior positions).
William E. Leuchtenberg, When Franklin Roosevelt Clashed with the Supreme Court—and Lost, Smithsonian Magazine (May 2005), https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/.
Id.; see also West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see also Helvering v Davis, 301 U.S. 619 (1937).
Richard Wolf, Liberal groups seek to make Supreme Court an issue in 2020 presidential race, and conservatives exult, USA Today(Jul. 28, 2019), https://www.usatoday.com/story/news/politics/elections/2019/07/28/pack-court-liberals-conservatives-fight-over-supreme-court-size/1821303001/.
Biskupic, supra note3.
Wolf, supra note26.
Nina Totenberg, Justice Ginsburg: ‘I Am Very Much Alive’, NPR (Jul. 24, 2019), https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.