By Gabriel Elbert
The death of Justice Ruth Bader Ginsburg and nomination of Judge Amy Coney Barrett to the Supreme Court have thrust the Court and the Senate nomination process back into the spotlight. One topic that has been circulating in the news cycle this time is the idea of “court packing”.
The meanings of words are important, so let’s establish a definition for court packing. Court packing is expanding the size of a court by increasing the number of seats on the bench to allow for the installation of judges that will make favorable rulings. The Constitution does not prescribe a set size for the Supreme Court; it only establishes it. 1 Congress sets the number of seats, the President nominates members, and the Senate provides its “advice and consent” as a final approval or rejection of the President’s choice. 2
Currently, the Court has nine Justices, which has been the case since 1869. 3 It’s important to note that changing the size of courts is not inherently court packing. The size of the Supreme Court has fluctuated over time, typically adding seats when new circuit courts were created. Only when the change in size is used to accomplish political goals should it be considered “court packing”. What it is not is the filling of already existing vacant seats. The strategy stems from a line of progressive thought regarding the role of the Supreme Court. Specifically, the term is being thrown around as a serious option for today’s left as a way to undo or counteract the number of originalists and textualists (those who apply the Constitution based on its original meaning and written text), like Barrett, that are now seated on the Court. 4
Progressives adhere to a political philosophy that first came about during the ‘Progressive Era’ (1890s-1920s), the brainchild of 19th Century political scientists. You’re probably most familiar with the modern label being applied to politicians like Elizabeth Warren or Bernie Sanders. At the time, however, the title of ‘progressive’ was not reserved for the just Democrats and those on the left as it is today. Many members of the Republican party, including Teddy Roosevelt (the 26th President), were also members of the progressive camp. Progressives, generally, can be characterized by their view of the role of government, which features an expanded administrative state filled with unelected, unaccountable “experts” and central planners (i.e., the bureaucracy), free to make policy outside of the Constitutional constraints of checks and balances. The progressive Democrat Woodrow Wilson (the 28th President), in a number of speeches, essays, and books laid out the progressive theory for constitutional government, with one quote, in particular, capturing his view succinctly: “The Constitution was not made to fit us like a straitjacket. In its elasticity lies its chief greatness”. 5
Due to progressive influence over the past century, Congress has ceded much of its law and policy making power to independent agencies and to the Supreme Court. The progressive function of the Court is that of a super legislature: a backup plan for when Congress cannot or refuses to enact their policies. Hence, the government continues to expand, and decisions with the force of law, not based on the literal text of the Constitution, nor passed by Congress, are used as bait to ignite the voter base every election cycle. It’s become very elastic. Take the view of progressive Chief Justice Charles Evans Hughes, who served during the New Deal Era from 1930-1941. He was quoted in 1907 saying, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution”. 6 This approach abandons the text of the Constitution. It puts the security of the rights of citizens in jurists alone as opposed to the original construction of constitutional checks and balances in limited government.
As matters of constitutional interpretation ultimately lie with the Supreme Court, a President wishing to get their agenda accomplished “constitutionally” need only control a majority of seats on the Court to prevent a legal challenge. If a majority cannot be achieved, simply add more seats for the President to “pack”.
The court packing tactic was first suggested in the United States by 32nd President Franklin D. Roosevelt (though not part of the Progressive Era, he is venerated by today’s progressives) who was frustrated by a number of Supreme Court rulings that struck down some of his New Deal legislation as unconstitutional. In 1937, FDR proposed the Judicial Procedures Reform Bill, which would have allowed him to appoint new Justices (up to 6 more for a total of 15 on the bench). 7 The effort ultimately failed, but the political pressure from FDR with this threat caused a change in how the Court started ruling thereafter. This was purely an attempt to erode the Constitution’s checks and balances and reduce the body to a rubber stamp to prevent any opposition to his agenda. If the Court stood in his way, then he’d pack it to remove the “rigid straitjacket”.
While court packing has not yet seen success in the United States, the same cannot be said for other places. The socialist regime in Venezuela, as well as authoritarians in other countries, were able to accomplish their goals by employing the court packing scheme. 8 In 2004, socialist president Hugo Chavez politicized the Venezuelan Supreme Court when his socialist party passed a measure expanding the Court from 20 to 32 members. 9 This empowered him to appoint 12 new Justices and cemented his majority. Chavez and his supporters justified this move as a way to counteract unfavorable rulings. Sound familiar?
Contrast the progressive view of the Supreme Court, and the quote by Chief Justice Hughes, with the following quote from the late Justice Antonin Scalia, an originalist: “The Constitution says what it says and doesn’t say what it doesn’t say”. 10 The Framers’ intent was a third, coequal branch of government based on reason that could act as a check against Congress, purposefully separated from the passions of the people. The progressives and socialists disagree with this idea of what the court is. The best way to protect and secure rights is to stop treating the Supreme Court as a super legislature by appointing Justices that will apply and who understand the Constitution as written, returning legislative authority to Congress alone. 11 The Court was never meant to be the granter of rights, writers of policy, or amender of the Constitution, but rather, a way for the government to keep itself within the bounds of the Constitution. The Constitution can be changed, but it can only be done through the correct process in Article V, not at the whim of the Supreme Court. 12 The socialists in the United States know that without the progressive model of government, the Constitution as written will never allow for the amount of power necessary to achieve their goals. Without a neutered Court full of yes-men and yes-women, those who seek to expand government beyond its proper role will be unable to do so. Why else would the left be so upset with the appointment of originalists and textualists?
Gabriel Elbert is a freedom-loving patriot and a proud American. He is the son of a Colombian immigrant, and is incredibly grateful for all of the opportunities that living in America provides. You can find him at college football games on Saturdays during the fall (Go Buffs!), and exploring the Rocky Mountains all year round. He is a passionate believer in individual liberty, and is excited to share his thoughts with everyone on the YAAS platform!