William G. Ross, Professor of Law and Ethics at the Cumberland School of Law at Samford University, discusses the perverseness of court packing today and in 1937...
Court packing, an idea that seemed forever discredited for 80 years after President Franklin Roosevelt’s notorious plan went down in flames in 1937, is back on the table. President Biden has appointed a commission to study the possibility of increasing the number of U.S. Supreme Court Justices, a response to calls from various Democrats to “pack” the Court in order to eliminate the majority that “conservatives” have had on the Court since Amy Coney Barrett replaced Ruth Bader Ginsburg last year. Court packing emerged as a subject of discussion among Democrats during last year’s presidential campaign, and congressional Democrats introduced bills in the House and Senate on April 15 to add four Justices to the Court. Although House Speaker Nancy Pelosi has announced that she will not move forward with the measure at least for now, she and other leading Democrats have lauded Biden’s decision to conduct a formal study of the possibility of packing the Court.
Biden, a former chair of the Senate Judiciary Committee who in the past has expressed opposition to court packing, probably is wise to have formed this commission in response to calls for court packing from prominent members of his own party. Study of the issue by a nonpartisan commission is a temperate alternative to initiating discussion in the hurly burly of congressional hearings. Even if Biden ultimately favors at least some form of court packing, his appointment of a commission will spare him from the harsh criticism Roosevelt received for unleashing his court packing plan as a thunderbolt of a surprise, without having consulted anyone other than his closest advisors and without having given any hint of what he was planning. If Biden does not support court packing, as he would need to do if court packing legislation were to have any chance of success, he could rightly claim that he had given the idea fair consideration through his appointment of the commission.
Court packing would not require a constitutional amendment because the Constitution does not prescribe the number of Justices who may serve on the Court. Congress may authorize any number of Justices, and the Court’s size has ranged from six to ten Justices. There have been nine Justices since 1837, except for the years 1863 to 1869, when there were ten.
Advocates of court packing claim that appointment of four more Justices by a Democratic president would restore balance to a Court that so-called “conservatives” have hijacked and that the need for court packing is particularly compelling if Democrats succeed in enacting even part of their raft of controversial legislation, most of which presumably would be challenged on constitutional grounds. Indeed, various Democrats, including Senator Charles Schumer of New York, insist that additional Justices would “unpack” a Court that presently is “packed” with right-leaning Justices. Since none of the six “conservative” Justices are particularly old by Supreme Court standards, with the partial exception of 73-year-old Clarence Thomas, Biden is not likely to have an opportunity to replace any of these Justices during his term.
Opponents of court packing quite reasonably contend, however, that increasing the Court’s size for political reasons would undermine judicial independence and interfere with separation of powers since it would allow the President and Congress to manipulate the outcome of judicial decisions by appointing additional Justices who would be expected to conform to the political predilections of the President and his party. Moreover, the prospect of legislation to permit the appointment of even more Justices if the Court’s decisions did not placate the President and his partisans might intimidate the Court so much that it might influence its decisions. Court packing also could erode public support for the Court since it would exacerbate the tendency of Americans to believe that the Court’s decisions are guided by political prejudices rather than constitutional principles. Justice Ginsburg expressed this fear only a few weeks before her death last year, as did Justice Breyer during a speech at Harvard Law School earlier this year.
Opponents of court packing also aptly ask whether and how court packing would end once it began. If, for example, Democrats were able to obtain a “liberal” majority on the Court by appointing four more Justices and Republicans won control of the presidency and the Senate in 2024, would the next President appoint another four Justices to restore a “conservative” majority? Such ongoing court packing therefore could hoist court packing advocates on their own petard, for future “conservative” Presidents could pack the Court with Justices whose ideologies would be anathema to the Democrats who are presently advocating court packing.
Another argument against court packing is that it could impair the Court’s ability to function effectively. Justices and legal scholars have tended to agree that nine is the ideal size for the Court since it is large enough to distribute the Court’s heavy workload and provide a range of viewpoints while small enough to promote collegiality and close deliberation. In particular, the addition of Justices would provide individual Justices with less time and opportunity to ask questions during oral arguments and to participate in the Court’s post-argument conferences to discuss cases. Although the length of arguments and conferences could be extended, dragging them out in this manner could dilute the quality of analysis. When Roosevelt disingenuously attempted to disguise the political nature of his proposal to add six additional Justices in 1937 by claiming that the six Justices who were older than 70 were overworked and could use additional assistance, Chief Justice Hughes publicly torpedoed Roosevelt’s claim. In a letter to Senator Burton K. Wheeler of Montana, Hughes declared that more Justices would impair the Court’s efficiency. “There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is…large enough so far as the prompt, adequate, and efficient conduct of the work is concerned,” Hughes wrote. Nine Justices today presumably may work more effectively without additional help than they could have in 1937 since Justices now have many more resources at their disposal, including four law clerks rather than one and an array of modern technologies.
Although advocates of court packing contend that the Court’s new “conservative” majority should not frustrate the programs of the other two branches of government, it is the very role of the Court to filter political agendas through a constitutional lens. If the Court naturally worked in tandem with the President, the Congress, and state governments, there would be little need for the Court. In a speech a month after he announced his court packing plan, Roosevelt offended many Americans by comparing the three branches of government to three plough horses, explaining that the government cannot function effectively if all three branches do not work in unison, just as three horses cannot plough a field if one horse does not cooperate with the other two. Roosevelt’s critics pointed out that this represented a fundamental misunderstanding of the Court’s role. Advocates of today’s Court packing proposal similarly need to appreciate that tethering the Court to the President and Congress contravenes fundamental concepts of separation of powers.
Efforts to pack the Court at the present time are particularly brazen in their partisanship insofar as the Court is not monolithically “conservative” even though Ginsburg’s replacement with Barrett certainly shifted the Court to the right and at least to some extent disrupts the four-to-four-to-one balance that had prevailed on the Court for more than four decades. Indeed, there has been no significant liberal/conservative dichotomy in many of the Court’s most recent decisions. During its most recent term, for example, the Court sustained the constitutionality of the Affordable Care Act for the third time, albeit on narrow grounds, by a vote of seven to two. The Court was unanimous in its recent decision protecting constitutional rights of high school students to engaged in off-campus speech. And Chief Justice Roberts and Justice Neil Gorsuch joined the Court’s decision last year to interpret the Civil Rights Act of 1964 in a way that extends its protections to gays.
From a partisan standpoint, Roosevelt arguably had more compelling reasons for wanting to pack the Court in 1937 than do today’s advocates of court packing. When Roosevelt announced his plan on February 5, 1937, the Court was on the verge of deciding cases involving the constitutionality of both the old age and unemployment compensation provisions of the Social Security Act of 1935 and the National Labor Relations Act. Decisions of the Court in analogous cases striking down economic regulatory legislation during the past two years provided strong indications that the Court would strike down these statutes by at least a five-to-four vote. The Social Security Act was a more monumental statute than any legislation that is likely to come before the Court during the Biden administration, and the National Labor Relations Act was at least as important as any statute that Congress is likely to enact during the next few years. During the past 80 years, the old age pension provisions of the Social Security Act have spared tens of millions of elderly Americans from destitution, while the unemployment compensation features of the legislation have rescued tens of millions of workers and their families from impoverishment during periods of unemployment. The National Labor Relations Act has gone far toward ameliorating the industrial turmoil that roiled the United States throughout the Great Depression and threatened the nation with economic and political chaos.
Faced with a high probability of the nullification of these cornerstones of his New Deal, it is not surprising that Roosevelt would have resorted to a radical expedient to rescue this legislation. Roosevelt also reasonably feared that the Court would stymie additional measures he intended to propose, including those included in what became the Fair Labor Standards Act of 1938, which established minimum wages and prohibited the most egregious forms of child labor. Although Roosevelt considered seeking a constitutional amendment to expand the power of Congress to enact economic regulatory legislation, he regarded the prospects of such an amendment as too hazardous since it would have required two-thirds approval by both houses of Congress and the assent of three-quarters of the state legislatures.
Roosevelt likewise had more of a mandate than Biden for measures to save his programs, for he had been re-elected three months earlier in a landslide in which he received 60.8 percent of the popular vote, won a 523 to 8 victory in the Electoral College, and carried all but two states. He also commanded overwhelming majorities in Congress, with Democrats having 72 of the 96 seats in the Senate and 382 of the 531 seats in the House. In contrast, the Democrats presently have no mandate for any kind of radical measure since Biden was elected with only a small majority of the popular vote and a tepid margin of 306 to 232 in the Electoral College, with Democrats controlling only half the seats in the Senate and winning a majority of only nine seats (222 to 213) in the House. Much of Biden’s victory may represent more of a revulsion toward Trump than support for far reaching Democratic proposals for social and economic reforms, many of which are likely to come before the Court.
Similarly, it is a fallacy to suppose that the Democratic victories in the 2020 election provide any mandate for a “liberal” Court insofar as Democratic voters do not necessarily have views that align with one bloc or the other on the Court. Although seven or eight members of the Court during most times for the past several decades have mirrored the positions of the Republican or Democratic parties to a degree that is astonishing, the political views of most Americans presumably are more eclectic. Most persons I know agree sometimes with the liberal Justices and sometimes with the conservatives, regardless of their general political inclinations or partisan preferences. This makes sense since the bundle of positions espoused by both parties have little internal logic and are largely dictated by the interest groups that support those parties.
Even with such an overwhelming electoral mandate, Roosevelt encountered a firestorm of opposition, even among many persons and organizations that had supported his recent re-election and favored the economic regulatory measures that the Court imminently threatened. Ethnic and religious minorities were particularly vocal in their opposition, for they were grateful to the Court for recent civil liberties decisions and feared that court packing jeopardized the Court’s new and growing role as the champion of minority rights. The American Bar Association, then a politically conservative organization, strongly opposed the measure, which was tabled by the Senate Judiciary Committee five months after Roosevelt proposed it.
Roosevelt exacerbated opposition to his proposal by claiming disingenuously that six additional Justices were needed to help relieve the burden of work on the six Justices who were older than seventy. It was only after Hughes forcefully insisted that none of the Justices were overworked that Roosevelt finally admitted that his real motives were political. At least the present advocates of court packing are not trying to disguise their political motives.
The Supreme Court itself helped to defeat Roosevelt’s court packing plan by sustaining important regulatory measures, including both the old age and unemployment compensation provisions of the Social Security Act and the National Labor Relations Act, while the Senate Judiciary Committee was deliberating on the plan. Most of these decisions were five-to-four, with Justice Owen Roberts tipping the Court’s balance, just as he had cast deciding votes in opposition to similar statutes during the previous two years. Historians continue to disagree about the extent to which the court packing plan influenced Roberts and Chief Justice Hughes, who like Roberts seemed to become markedly more receptive to the constitutionality of regulatory legislation after Roosevelt announced his plan. Even if no Justices were specifically intimidated by the court packing plan, it is not surprising that a majority of the Justices eventually tilted in favor of sustaining New Deal legislation, for Justices are more sensitive to public opinion than they usually care to admit. Keenly aware that the Court has, as Alexander Hamilton pointed out, “no influence over either the sword or the purse,” Justices recognize that their power ultimately depends upon the support of the President, Congress, state governments, and the American people. Even if today’s Court seems to tilt toward the right, the Court ultimately is unlikely to stray very far for very long outside of the political mainstream. It never has.
It is significant that progressives who regard the Court as unduly conservative have chosen court packing as their principal expedient rather than court curbing, which until about half a century ago was the usual remedy proposed by critics of the Court’s decisions. Throughout much of the Court’s history, such antagonists have proposed a raft of measures to curtail the Court’s institutional powers. These have included legislation to permit Congress to overturn judicial decisions; measures to require a super-majority of Justices (six, seven, eight, or nine in various proposals) to invalidate federal and/or state legislation; and bills to remove the jurisdiction of federal courts over various classes of cases. Congressional overrides and super-majorities were among the favorite remedies of populists, progressives, and labor leaders who assailed a conservative Court for its nullification of economic regulatory legislation during the half century before the Court sharply reduced its scrutiny of such legislation starting in 1937. When opposition to the Court recrudesced on the conservative side of the political spectrum during the 1950s and 1960s in response to the Court’s decisions on race, internal subversion, school prayer, and reapportionment, jurisdiction stripping became the favored remedy. Some conservatives also proposed the creation of a so-called “Court of the Union,” consisting of the chief justices of the fifty state supreme courts (who generally were more conservative than U.S. Supreme Court justices), which could have reviewed and overridden U.S. Supreme Court decisions.
During the past half century, however, critics of the Court’s decisions generally have not attempted to curtail the Court’s institutional powers but rather have tried to influence the way in which the Court exercises its powers, which is one of the major reasons why the confirmation process has become increasingly tumultuous. One way to reform the Court without packing it or altering its institutional powers would be to enact a constitutional amendment limiting the terms of Justices and/or providing a mandatory retirement age. Although these measures arguably could interfere with judicial independence, they are less likely than court packing to damage the Court’s integrity. These perennial proposals for limitations on tenure have received somewhat more attention than usual during the past few years, but court packing seems more appealing to liberal activists because it is a quick political fix.
Today’s court packing proposals jeopardize the Court’s integrity and independence no less than did Roosevelt’s plan in 1937. As in 1937, Americans today of all political persuasions should oppose such political interference with the Court.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University, where his courses include Constitutional Law and American Constitutional History. His many publications about Court-curbing movements include ‘A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937’ (Princeton University Press, 1994).
Suggested citation: William G. Ross, Court Packing: As Perverse Today as It Was in 1937, JURIST – Academic Commentary, July 24, 2021, https://www.jurist.org/commentary/2021/07/william-ross-court-packing-still-perverse/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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