YOU DECIDE: Should Democrats Pursue a “Court-Packing” Strategy?

The death of Supreme Court Justice Ruth Bader Ginsburg in September left a vacancy on the Supreme Court. Within days, President Trump nominated a new justice: Judge Amy Coney Barrett. The Senate confirmed Judge Barrett’s on October 26. The Court now has a 6 to 3 majority of justices appointed by Republican presidents, leading many Democrats to consider increasing the number of justices on the Court if Biden wins the upcoming presidential election.

But this “court packing” strategy is controversial. Congress has the authority to set the size of the Court, which is not described in specific numerical terms in the Constitution. The Judiciary Act of 1869, passed by Congress, said that the Supreme Court would consist of a chief justice and eight associate justices. This idea has been raised before. In 1936,  President Franklin D. Roosevelt, considered supporting legislation that would add justices to the Court. But ultimately it proved unnecessary.

Many Democrats see “court-packing”—increasing the size of the Supreme Court–as a way to restore political balance on the Supreme Court and as a way to fight against the Republican maneuvers during recent election years to control the nomination and appointment process.

Based on what you’ve heard and seen in the news, YOU DECIDE: Should Democrats pursue a “court-packing” strategy?

YES

• The U.S. Constitution does not define the Supreme Court’s size. The Court started with only six justices and has had as many as ten sitting justices in its past. A president is within his or her rights to promote legislation to alter the number of justices.
• Democrats believe that Republicans have taken advantage of the Supreme Court nominations’ process. Adding more justices to the Supreme Court is one way to counteract this. For example, in 2016, Senate Republicans refused to confirm Merrick Garland, then-President Barack Obama’s nominee, because it was an election year. Instead, they held the seat open for the next president. Trump’s election win allowed him to nominate Justice Neil Gorsuch. Senate Republicans reversed their position to confirm Amy Coney Barrett just days before a presidential election.
• The Supreme Court should be balanced to reflect the diverse values and make-up of the United States today.

NO

• The Supreme Court is supposed to be above partisan politics. The majority political party should not expand the number of justices to influence the political makeup of the Court in favor of either party.
• The Supreme Court has traditionally held at nine justices since the late nineteenth century. It should not be changed now because of recent political disagreements.
• Packing the Court with politically appointed justices now would set a dangerous precedent for the future. This could result in the Court expanding further in the future.