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Court-packing, Democrats’ nuclear option for the Supreme Court, explained

Why an FDR plan from the 1930s is suddenly popular again.

Supreme Court justices, 1937-38
The justices of the Supreme Court for the 1937-38 term. Sitting, from left to right, Justices Sutherland and McReynolds, Chief Justice Hughes, Justices Brandeis and Butler. Standing, left to right, Justices Cardozo, Stone, Roberts, and Black.
Bettmann/Getty Images

When news broke that Ruth Bader Ginsburg, the longest-serving liberal justice on the Supreme Court, had died, it became clear almost immediately that President Trump would try to replace her with a conservative justice before the presidential election on November 3. It also became clear that Mitch McConnell, the Senate majority leader who famously blocked President Obama’s Supreme Court nominee in a presidential election year in the name of letting the people choose, would work with Trump to push through the nominee ASAP.

The brazenness of the move, along with the prospect of a Supreme Court with six conservative justices, almost immediately sparked a liberal response in the form of calls for court-packing.

“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Sen. Ed Markey (D-MA) tweeted. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” House Judiciary Committee Chair Jerry Nadler (D-NY) sounded a similar threat if the confirmation happens during a lame-duck period, tweeting, “If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court.”

Senate Minority Leader Chuck Schumer has already signaled his openness to court-packing if he becomes majority leader, telling his caucus in a conference call, “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.” On the lobbying/advocacy side, the organization Demand Justice, run by veteran Democratic strategist Brian Fallon, is pushing hard for additional Supreme Court seats and term limits. (For his part, Democratic presidential nominee Joe Biden has recently avoided signaling how he would approach the issue, leading to Republican criticism.)

The calls for court-packing, though louder than ever, are not entirely new. Almost as soon as Anthony Kennedy announced his retirement from the Supreme Court this in June 2018 calls started pouring in from liberals and leftists for court-packing.

There is nothing in the Constitution mandating that the Supreme Court have nine members, and a simple act of Congress could increase that number to 11, or 15, or even more. That effectively creates a way for a political party in control of the House, Senate, and presidency to add a large number of ideologically sympathetic justices to the Court, all at once.

To many leftists and left-liberals, such drastic action is needed if any progressive legislation in the future is to survive — and if precedents on abortion rights and LGBTQ equality are to avoid reversal. Back in 2018, the Supreme Court effectively gutted public sector unions under the guise of the First Amendment. In 2012, there were four votes on the Supreme Court (including Anthony Kennedy) for striking down the Affordable Care Act in full. And there’s an emerging movement of judicial conservatives, championed prominently by Donald Trump’s appellate appointee Don Willett, that wants the courts to become much more aggressive in blocking economic regulation.

If that kind of judicial conservatism comes to dominate the Supreme Court, then even winning back the White House and Congress won’t be enough for programs like a $15 minimum wage, or Medicare-for-all, or a free college plan, to be passed and secured. The Supreme Court would stand ready to rule them unconstitutional nearly as soon as they are passed. In such a scenario, court-packing starts to look like a reasonable defensive measure.

The prospect of a Court slapping down progressive economic measures brings to mind the last time court-packing was seriously considered. In 1937, Franklin Roosevelt was facing off with a hostile Supreme Court that routinely ruled aspects of the New Deal unconstitutional on the same grounds. During that era, the Court interpreted the due process clauses of the 5th and 14th Amendments as sharply limiting economic regulation and ruling out things like federal bans on child labor, minimum wage laws, and legislation limiting workweeks to 60(!) hours.

Roosevelt’s plan to increase the Court’s size — which would have allowed him as many as six new justices, for a 9-6 majority for the New Deal on a 15-member court — ultimately failed in the Senate, but not before successfully pressuring Justice Owen Roberts to switch his alignment from the Court’s conservatives to the liberals and rule for the constitutionality of minimum wage laws and the National Labor Relations Act.

If calls for court-packing grow loud enough, you could see something similar happen on the current Court, if some of the Republican-appointed justices like John Roberts or Brett Kavanaugh start moderating their decisions to prevent the radical disruption of the Court by Democrats who fear being locked out of policy influence for a generation.

Alternatively, a successful court-packing effort from Democrats could spur retaliation from Republicans, and this process itself could undermine the Court’s authority. In some ways this might be desirable, and transfer decisions on important policy matters away from the Court and into the hands of democratically elected legislatures. But it could also undermine faith in the rule of law, and increase the threat of democratic backsliding.

The case for court-packing

One of the most extensive arguments for court-packing comes from David Faris, a political scientist at Roosevelt University, whose book It’s Time to Fight Dirty argues for court-packing as part of a larger set of strategies to amplify Democrats’ political power, including statehood for DC and Puerto Rico, breaking California into multiple states, and expanding the House of Representatives.

The Republican Senate’s refusal to even consider Merrick Garland for Antonin Scalia’s seat, Faris writes, violated “a norm that presidents should get to nominate whoever they like, within reason.”

He continues: “Because of this unspoken agreement between the two parties, both sides regarded Supreme Court openings as what they are — lotteries to be won by lucky presidents, or lost by those unfortunate enough not to preside over an opening. The GOP’s treatment of Merrick Garland means that this informal agreement is trashed.”

That, to Faris, makes extraordinary measures like court-packing suddenly viable. And the threat of a conservative Court undoing just about any legislative accomplishments of the next unified Democratic government makes it necessary: “A Court that strikes down a Medicare For All insurance system, or legislation establishing equal funding for public education, or that chips away at abortion rights, gay rights, and other issues that are now supported clearly by a majority of the public will create a profound crisis in American society of the likes that we haven’t seen since the Great Depression.”

To lower the stakes of confirmation battles, Faris favors eliminating lifetime tenure for judges and adopting the nonpartisan group Fix the Court’s plan of nonrenewable 18-year term limits. But unless nominees voluntarily pledge to step down after 18 years (which would effectively be a form of unilateral disarmament if only one party’s nominees take that pledge), term limits would require a constitutional amendment to enact. Court-packing, by contrast, only requires an act of Congress and could pressure Republicans to accept term limits as a compromise.

“If the reactionary right is unwilling to go along with this idea, as they almost certainly won’t be due to short-term political calculations, Democrats must use the power granted to them by the Constitution to pack the Supreme Court, protect the legislation demanded by a majority of Americans and, hopefully, to convince their opponents that the current structure of the court system cries out for a bipartisan solution,” Faris concludes.

In the aftermath of Kennedy’s retirement, a number of leftist/liberal writers echoed Faris’s arguments. Attorney and writer Mark Pickett argued in the Outline, “increasing the size of the Court is an entirely proportional response to the GOP’s abuse of process. Gorsuch’s appointment alone justifies it. In shifting the Court from a potential 5 to 4 liberal majority to a 5 to 4 conservative majority, the Republicans effectively stole two votes. Increasing the Court’s size to 11 justices would merely rebalance what was taken.”

Todd Tucker, a political scientist and fellow at the Roosevelt Institute, argued more explicitly on the basis of policy outcomes in Jacobin. “With union density near an all-time low and climate catastrophe on the horizon, future lawmakers will need tools even more robust than what FDR was able to get through — think a Green [National Industrial Recovery Act] on steroids,” Tucker writes. “A handful of justices pulled from Federalist Society debating clubs can’t and shouldn’t get in the way of a more democratic and sustainable economy.”

The historical precedents behind court-packing

There are some historical precedents for changing the court’s size beyond FDR, as a recent paper by University of Wisconsin law professor Joshua Braver details. Braver chronicles the seven times the court’s size has changed:

  • In 1801, before the inauguration of Thomas Jefferson, the outgoing Federalist Party passed the Judiciary Act, shrinking the Court from six to five members by providing that the next member to die or resign would not be replaced.
  • In 1802, Jefferson’s Democratic-Republican Party repealed the 1801 law and returned the Court to six members.
  • In 1807, the Jeffersonian-dominated Congress expanded the Court to seven members, to accommodate a new judicial circuit covering Kentucky, Tennessee, and Ohio, then new additions to the Union.
  • In 1837, two new circuits were created to accommodate the new states of Louisiana, Indiana, Mississippi, Illinois, Alabama, Maine, Missouri, Arkansas, and Michigan, and the Court’s size increased to nine.
  • In 1863, Congress added an additional circuit covering the new states of California and Oregon, and increased the Supreme Court’s size to 10 members accordingly.
  • In 1866, as pro-Reconstruction Republicans in Congress did battle with President Andrew Johnson, Congress passed a law barring Johnson from filling vacancies until the Court shrank to eight members, which occurred the following year.
  • In 1869, with pro-Reconstruction President Ulysses S. Grant in office, Congress increased the Court’s size to nine, where it’s stayed ever since.

While some past scholarship has characterized all these changes as power grabs meant to enhance the power of the party controlling Congress, the presidency, or both, Braver argues the history is more complex, and that the 1807, 1837, and 1863 changes were driven by a now-defunct practice called “circuit-riding.”

Today, there are (to oversimplify a bit) three levels of federal courts: District Courts, which try cases; Circuit Courts of Appeals, which are mostly regional bodies that handle appeals from district courts; and the Supreme Court. But Circuit Courts of Appeals did not exist until 1891. Before then, the intermediate appeals stage was handled by having one district judge and one Supreme Court judge “ride circuit” and act as an appeals panel for a given circuit/region.

However, this was also the 19th century, so the US was expanding westward at a rapid pace, and regularly admitting new states. That necessitated the creation of new circuits for the new states, and because each circuit had historically had its own Supreme Court justice assigned to it, new circuits meant new justices. The creation of new justices was political, but it wasn’t a brazen power-grab, according to Braver.

The 1801/1802 and 1866/1869 changes, however, do count as attempts at court-packing, per Braver. In 1801, outgoing president John Adams and his Federalist allies in Congress shrank the Court in an attempt to deny incoming Democratic-Republican President Thomas Jefferson a seat. The chief justice had resigned during the lame-duck period, so Adams both rushed through a replacement (John Marshall, now widely regarded as one of the greatest justices in American history) and signed legislation specifying that upon the next vacancy, the Court would shrink from six to five members. But the effort was unsuccessful — in 1802 the Jefferson-allied Congress simply repealed the legislation and restored the court to six.

The 1866 court-packing effort, by contrast, was successful. The Republican Congress, furious with Democratic President Andrew Johnson’s efforts to undermine Reconstruction and block measures guaranteeing civil rights for former slaves, sought to prevent him from filling the seat of a justice who died shortly after Republican President Abraham Lincoln’s assassination. So Congress passed legislation shrinking the court to seven seats. The Court would only be expanded again to nine seats in 1869, once Ulysses S. Grant, whose views on Reconstruction were much closer to the Republican Congress’s, took office as president.

Braver’s conclusion is that court-packing is “nearly novel in American history,” as the 1866/1869 case is the only successful instance of it, and “this lone example of successful court-packing occurred in an extraordinarily low-risk situation in which there was less threat of partisan retaliation because the president at the time [Andrew Johnson] lacked the support of either major political party.” While a Democrat, Johnson was a war Democrat, had abandoned the party to run with Lincoln, had failed to do any patronage for Democrats, and tried to start a new party of disaffected Democrats and Republicans, irritating both parties in the process.

An observer supportive of court-packing might note that the 1866 effort was spearheaded by radical Republicans in a historic, briefly successful effort to achieve formal and perhaps even substantive racial equality for the first time in American history. If you believe the stakes in 2020 to be similarly grave, that might argue for borrowing the tactics of Republicans like Thaddeus Stevens and Charles Sumner.

The arguments against court-packing

Court-packing was unpopular with the public when proposed by Roosevelt, and there’s a reason that many constitutional scholars and political scientists continue to decry it to this day.

In How Democracies Die, Harvard comparative politics scholars Steven Levitsky and Daniel Ziblatt characterize 1937 as one of America’s close calls with democratic backsliding. “Democratic institutions depend crucially on the willingness of governing parties to defend them — even against their own leaders,” Levitsky and Ziblatt write. “The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.”

In their 2017 paper “How to Lose a Constitutional Democracy,” University of Chicago law professors Aziz Huq and Tom Ginsburg concur, writing, “The presidential effort to pack the Supreme Court represents a low point for the rule of law in the United States, and is a technique that has been followed by modern-day illiberal democrats.”

It’s not hard to see why political scientists taking a more international view would see court-packing as, on its face, a threat to democratic institutions. As Huq and Ginsburg note, court-packing is a frequently used tool in the toolkit of would-be authoritarians.

To give a few examples:

The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple of decades. It’s not a thing of the past, and is currently used by the authoritarian backsliders (Orbán, the Law and Justice party, Erdoğan) that people who worry about Trump’s anti-democratic tendencies compare him to.

A norm-busting tool to preserve democracy?

Supporters of court-packing could argue that just because the same method is used doesn’t mean that court-packing itself is anti-democratic. To give an analogy: When Italy abandoned proportional representation in 1923 by adopting the Acerbo Law, it did so to try to engineer landslide victories for Benito Mussolini’s fascists; but it doesn’t follow that any country that doesn’t use proportional representation (like the US or the UK or Canada) automatically is an autocracy. Court-packing is a tool: It can be used for authoritarian ends, or for democratic ones.

To which critics would reply: Not so fast. Even a well-intentioned court-packing scheme (like FDR’s arguably was) can set off a cycle of mutual escalation that winds up discrediting and weakening the institution being battled over. The Supreme Court has no army. Its authority rests on the thin reed of public acceptance and political forbearance. If it were to be weaponized in a court-packing scheme, its rulings might suddenly stop being obeyed.

Let’s say that President Joe Biden packs the Court in 2021, and the Court subsequently overrules Milliken v. Bradley and forces white suburbs across the country to bus their kids into inner-city public schools, and to accept (disproportionately Black and Latin) students from poor neighborhoods bused into their own schools. This would be the correct result, in my opinion. Milliken v. Bradley was a disastrous decision that drastically undermined the cause of school desegregation. But if such a ruling followed a court-packing effort, how much do you want to bet that the rich suburbs of Chicago’s North Shore would actually start busing their kids to Englewood? Or that Beverly Hills would let in students from Compton? Or would they view the ruling as illegitimate and simply not obey?

You could imagine the same for any number of issues: Alabama refusing to issue same-sex marriage licenses and disregarding any Supreme Court rulings forcing it to obey Obergefell v. Hodges; South Dakota banning all abortions save when the life of the mother is at risk, and ignoring Supreme Court rulings striking down the law. If this all sounds far-fetched, let me quote my colleague Ian Millhiser, who is broadly sympathetic to court-packing as a last-ditch effort to prevent the Supreme Court from entrenching economic inequality permanently: “packing the Court would effectively destroy the legitimacy of the federal judiciary and potentially embolden right states … to ignore decisions they don’t like. No more Roe. No more Obergefell. No more Fourth Amendment.”

Now maybe, ultimately, weakening the Supreme Court is a good thing. Plenty of legal scholars on both sides of the aisle have, for years, argued that the US goes too far in embracing judicial review; few other countries give their highest courts the power we give ours to strike down laws passed by democratically elected legislators. Even in Canada, the parliament and the provinces retain the power to reverse Supreme Court decisions with supermajority votes. Perhaps court-packing would set off a spiral that results in a dramatically weakened Court, and power returned to the states and Congress to settle contentious issues like abortion and desegregation and LGBTQ rights through democratic processes.

I’m extremely sympathetic to that argument. But it’s also possible that’s not what happens, that court-packing merely leads to more games of constitutional hardball and enables a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him. That, roughly, is what has happened in Poland, Hungary, Honduras, Venezuela, and Turkey. It could happen here too.

Editor’s note: This article’s summary of the history of past changes to the Court’s size has been altered to reflect new scholarship. Thank you to Joshua Braver for his help.