By: Sid Salter
Depending on one’s partisan leanings, the latest national furor over so-called “court-packing” started with the failed 2016 Supreme Court nomination of U.S. Court of Appeals for the District of Columbia Chief Judge Merrick B. Garland. Former President Barack Obama nominated Garland as the successor to the late U.S. Supreme Court Justice Antonin Scalia.
Or, partisans from across the aisle say, it was begun by the current Supreme Court nomination of U.S. Court of Appeals for the Seventh Circuit June Amy Coney Barrett by President Donald Trump in an attempt to fill the seat vacated by the death of the late U.S. Supreme Court Justice Ruth Bader Ginsberg.
Like everything else in our country these days, there’s are decidedly partisan sides to the court-packing debate.
Democrats, wary of a conservative Supreme Court majority and seeing the political handwriting on the wall that the court is likely to become more conservative with the confirmation of Judge Barrett, see an effort to “pack” the court with more liberal judges as the only short-term solution to the philosophical split of the current nine-member Supreme Court.
Barrett’s confirmation would escalate this issue. Republicans are just as invested in maintaining the conservative advantage by resisting any court-packing effort.
The U.S. Constitution in 1787 did not establish a certain number of Supreme Court justices. The Judiciary Act of 1789 established a high court of six justices. With the Supreme Court at the top of a three-tiered federal judicial system, problems arose.
The lowest level was the federal district judges, who originally heard minor federal disputes and maritime cases. The Judiciary Act organized a second tier of federal circuit courts, comprised originally of two Supreme Court justices and one federal district judges.
Each Supreme Court justice was assigned a circuit district, so those early jurists traveled almost constantly to hear trial cases and appeals. Partisan battles over the makeup of the circuit court quickly developed.
That led to the Judiciary Act of 1801, which created six new federal circuit judgeships and reduced the Supreme Court from six to five members. But that changes happened at the end of the term of President John Adams, and his successor, Thomas Jefferson, repealed the bill. The high court reverted to six members and eventually to seven in 1807 when another federal circuit was added due to America’s westward expansion.
By 1837, the growth saw President Andrew Jackson and Congress add two more federal circuit districts and two more Supreme Court justices, bringing the total to nine members. In 1863, Congress and President Abraham Lincoln added a tenth federal circuit and a tenth Supreme Court justice.
But the aftermath of the Civil War saw northern congressional Republicans fearful that new Democratic President Andrew Johnson of Tennessee would influence the courts to adopt “Black codes” and limit the rights of the newly freed slaves. Congress adopted the Judicial Circuits Act, which dropped the Supreme Court to seven justices.
In 1869, Republicans passed another judiciary act and restored the high court to nine members. The nine-member Supreme Court remained stable until a divisive effort to actively pack the court with judges who would support this New Deal legislative package’s second phase.
The so-called “Nine Old Men” of the 1937 Supreme Court has been hard on FDR’s original New Deal initiatives.
So, in the name of helping reduce their workload, Roosevelt advocated expanding the court to 15 justices. The move backfired when the public and the press roundly panned the effort.
While there’s nothing unconstitutional about court-packing, it’s a bit like summarily rejecting baseball umpires until you find one who will call the pitch that’s clearly a ball a strike to the benefit of one’s favorite team.
Given the hyper-partisan nature of our country right now, court-packing as the new normal won’t bode well for the future of the separation of powers.