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Ruth Bader Ginsburg’s Death Revives Talk of Court Packing Ruth Bader Ginsburg’s Death Revives Talk of Court Packing
(3 days later)
The news on Friday that Justice Ruth Bader Ginsburg had died, creating a vacancy that could reshape the Supreme Court for a generation, revived talk about an idea that has been bandied about for years but, until recently, not feasibly considered by people in a position to enact it: court packing. The idea of expanding the Supreme Court has caught fire among some Democrats in recent days, as the death of Justice Ruth Bader Ginsberg has ignited a Washington power struggle that could drag on for months, long after the Senate votes on President Trump’s nominee to replace her.
The term is commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have expanded the Supreme Court from nine to as many as 15 justices. The history is more complicated than the usual narrative suggests: Mr. Roosevelt, aiming to push older justices to step down, wanted to add a justice to the court for each sitting justice who refused to retire after 70. “We should leave all options on the table, including the number of justices that are on the Supreme Court,” Representative Alexandria Ocasio-Cortez, the progressive House member from New York, said over the weekend.
More than eight decades later, the idea of expanding the court is back. In 2016, Senator Mitch McConnell, the Republican leader, refused to hold a Senate vote on Merrick Garland, who was nominated to the court by President Barack Obama after the death of Justice Antonin Scalia. Mr. McConnell held the seat open until after the inauguration of President Trump, who nominated Justice Neil M. Gorsuch. Expanding the court — or court packing — is an idea commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have broadened the Supreme Court from nine to as many as 15 justices. The history is more complicated than the usual narrative suggests: Mr. Roosevelt, aiming to push older justices to step down, wanted to add a justice to the court for each sitting justice who refused to retire after 70.
Mr. McConnell’s move led some Democrats, including the presidential candidate Pete Buttigieg, to suggest expanding the court. They argued that Republicans had “stolen” a seat that should have been filled by Mr. Obama, and that Democrats would be justified in adding seats to shift the ideological balance back. Today, Democrats characterize court expansion as a defensive move against Republican actions, not a unilateral power grab. In 2016, Senator Mitch McConnell, the majority leader, refused to hold a vote on Merrick Garland, who was nominated to the court by President Barack Obama after the death of Justice Antonin Scalia. Mr. McConnell held the seat open until after the inauguration of President Trump, who nominated Justice Neil M. Gorsuch.
Republicans have called the idea radical and undemocratic, and some Democrats have feared that it could backfire. The Democratic presidential nominee, Joseph R. Biden Jr., rejected the idea last year, telling Iowa Starting Line, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” He did not address the subject on Friday. Many Democrats now say that Mr. Gorsuch occupies a seat “stolen” by Republicans, which has shifted the ideological core of the court. Since Justice Ginsburg’s death, the outrage has intensified, as the White House has made clear that the president intends to nominate a justice to replace her just weeks before the election.
“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Senator Chuck Schumer, the Democratic leader, told his caucus on a phone call after Justice Ginsburg’s death.
His comments built on a movement to expand the Supreme Court that has been growing quietly within the party. During the presidential primary, several candidates expressed openness to the concept.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Senator Elizabeth Warren of Massachusetts in March 2019. “It’s a conversation that’s worth having.” At the October debate, Ms. Warren said, “people are talking about different options, and I think we may have to talk about them.”
Pete Buttigieg, the former mayor of South Bend, Ind., made the idea a linchpin of his early presidential campaign, before seeing more traction for embracing themes like generational change and attacking progressive proposals like Medicare-For-All.
By the end of the race, candidates across the ideological spectrum, including Senators Kamala Harris of California, Amy Klobuchar of Minnesota and Cory Booker of New Jersey, said court expansion should be explored.
Republicans have called the idea radical and undemocratic, and there are several roadblocks within the Democratic Party. Joseph R. Biden Jr., the party’s presidential nominee, rejected the idea last year, telling the website Iowa Starting Line, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” Several moderate Senate Democrats, including many who have won elections in tough swing states, panned the concept in recent days.
[Follow our live coverage of Justice Ruth Bader Ginsburg’s death and the Supreme Court vacancy.][Follow our live coverage of Justice Ruth Bader Ginsburg’s death and the Supreme Court vacancy.]
Mr. McConnell’s declaration on Friday that the Senate would vote on Mr. Trump’s nominee to replace Justice Ginsburg — a reversal of his 2016 stance that the nation’s voters should choose a president first — added fuel to the fire, with progressive activists and at least one senator calling publicly for court packing. Their premise, spoken in some cases and implicit in others, was that if Republicans had dispensed with the usual rules, Democrats would be justified in doing so, too. But in a sign of the rapidly changing political environment, Mr. Biden demurred when asked about court expansion during a local interview in Wisconsin after Justice Ginsburg’s death. He said answering that question would provide Mr. Trump a welcome distraction, and that he wanted to focus on Republican actions in Congress.
Senator Edward J. Markey, Democrat of Massachusetts, tweeted on Friday night: “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” “Let’s say I answer that question. Then the whole debate’s going to be about what Biden said or didn’t say, Biden said he would or wouldn’t,” Mr. Biden said. “The discussion should be about why” the president “is moving in a direction that’s totally inconsistent with what founders wanted.”
Although the Supreme Court has consisted of nine justices for well over a century, the Constitution does not require that number, and Congress changed the size of the court several times between its establishment and the Civil War. He added of Republican actions, “It is a fundamental breach of constitutional principle. It must stay on that and it shouldn’t happen.”
Although the Supreme Court has consisted of nine justices for well over a century, the Constitution does not require that number, and Congress changed the size of the court several times between its establishment and the Civil War. That has not stopped Republicans from seeking to weaponize the growing calls for court expansion, particularly as they try to frame Mr. Biden as a political Trojan horse for the Democrats’ left wing.
Representative Jim Jordan of Ohio, a close ally of Mr. Trump, submitted a resolution to Congress Tuesday that would formally limit the court to nine justices.
“Any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our nation’s highest court,” it reads.