by Scott Wagner
What You Need To Know
President Donald Trump has nominated Amy Coney Barrett to fill the vacancy on the Supreme Court left by the death of Justice Ruth Bader Ginsburg. If confirmed, she will be part of an unassailable 6-3 conservative majority on the judicial body.
Democrats have been quick to call out the hypocrisy of Senate Majority Leader Mitch McConnell’s decision. In 2016, after the death of Justice Antonin Scalia, McConnell refused to let the Senate vote on then-President Obama’s nominee, Merrick Garland, claiming that the vacancy shouldn’t be filled until after the election. Scalia died 270 days before the 2016 election; in contrast, Ginsburg died just 47 days before the upcoming election.
Since the death of Justice Ginsburg, Democratic politicians have been increasingly vocal about the prospect of reforming the Supreme Court. One option calls for the expansion of the Supreme Court to reestablish partisan balance and rectify the supposedly illegitimate additions of Neil Gorsuch and Brett Kavanaugh.
There is nothing sacrosanct about having exactly nine justices on the Supreme Court; the Constitution does not delineate the size of the institution. In the past, the number of justices used to match the number of federal circuit courts. As the United States expanded westward, new circuit courts were added. In 1837, Andrew Jackson added two new justices for a total of nine, to bring the number back in line with the number of circuits. A tenth circuit, along with a tenth justice, was added in 1863, before new legislation in 1869 reset the court at nine justices.
That number came under attack from President Franklin Delano Roosevelt in 1937. Riding high after his landslide reelection the year prior, Roosevelt set his sights on the court. From May 1935 to June 1936, the Supreme Court struck down more laws than any time before in US history. Much of the legislation was part of FDR’s New Deal, a plan to reinvigorate the US economy and provide relief for impoverished and unemployed Americans.
Roosevelt feared that without significant changes to the Supreme Court, his entire economic plan would be struck down. In a radio address to the public in March 1937, Roosevelt argued that the Court was standing against the popular mandate of the New Deal. He proposed adding a new justice for every current Supreme Court justice who served past the age of 70, creating a Court that could fluctuate anywhere between nine and fifteen members. While he tried to sell the reform as a cost-saving measure, his primary motivation was ensuring a pro-New Deal majority on the Supreme Court.
Roosevelt was typically a brilliant evaluator of public opinion, but he badly misread this situation. The American public, the Court, and even FDR’s own party saw the maneuver as a blatant executive overreach and a reprehensible power grab. The “court-packing” bill, as it came to be known, was killed in committee, and FDR paid the price at the ballot box. The 1938 midterms saw the Democrats lose 9 seats in the Senate and a crushing 81 seats in the House.
Demoralizing though the defeat was for Roosevelt, it was not a crippling blow. After the furor over the court-packing bill, Justice Owen Roberts began to vote in favor of upholding FDR’s New Deal programs. Whether he already planned to support them or was motivated to shift his view because of political pressure from Roosevelt is unclear; what is clear is that the New Deal survived the challenge of judicial review, and Roosevelt was eventually able to reshape the Court through traditional means, appointing nine justices across his four presidential terms.
What It All Means
Roosevelt tried to paint the Supreme Court as an obstacle to popular initiatives. While he couldn’t make the argument stick in 1937, Democrats might have more luck today.
In the early 20th century, judicial appointees typically served for 10-15 years; with the significant improvements in lifespan, recent appointees have been able to serve for 25 years or more. The longer terms increase the likelihood that the makeup of the Supreme Court will be wildly out of line with the political environment present in the United States, as nominees from thirty years ago cast deciding votes on the issues of today.
The Democrats have a strong case that the current configuration of the Supreme Court is not representative of the popular will. Should the Senate confirm Barrett, a majority of the Supreme Court justices will have been appointed by presidents that lost the popular vote. Three of the current justices—Justices Thomas, Gorsuch, and Kavanaugh—have been confirmed by senators representing less than half of the US population.
The Supreme Court offers an important check on executive power, but if it is increasingly viewed as an obstacle to popular legislative efforts on climate change, healthcare, and social justice, voters could grow increasingly amenable to court reform.
Scott Wagner is Supervising Editor at INTERZINE.