The following article is a written adaptation of a recent episode of What Next, Slate’s new daily news podcast. Listen to What Next for free every day via Apple Podcasts, Spotify, TuneIn, Stitcher, Overcast, Google Play, or wherever you get your podcasts.
Some of your favorite presidents have changed the makeup of the Supreme Court, and the idea is gaining more momentum as the 2020 election season gets underway.
“It’s not just cranks anymore,” says Mark Joseph Stern, a journalist and attorney who covers the Supreme Court for Slate. “We have Mayor Pete of South Bend. We have Kirsten Gillibrand. Kamala Harris has floated it. Those are big names. Those are not Redditors who are resistance moms freaking out.”
This idea of increasing the number of justices on the Supreme Court is known as court packing. Supporters of the concept argue the tactic ensures that the court will become more politically balanced—and right now, frankly, that means more liberal.
I asked Stern to tell me how court packing may work in the future on What Next, the new daily news podcast I host for Slate. It might surprise you, but the Constitution actually says nothing about court packing.
“The Constitution says that there shall be one Supreme Court, but it does not say how many justices are supposed to be on the court,” Stern says. “Throughout history, we have gone from as few as six [justices] all the way up to 10, but it has been fixed at nine for quite a long time, since the later part of the 1800s.”
He continues: “Nine is the number we’ve all come to know and expect and maybe love, so I think, for lots of Americans, even though there’s no constitutional bar on expanding it past nine, it feels weird and it feels like something that we should think really carefully about doing before we jump into the waters.”
This entire idea has gotten tricky for a lot of people in elected office. Michael Bennet, the Colorado senator who is thinking about running for president, was asked by a reporter about court packing. The Washington Post reported that he literally banged his head on the table four times in response to the question. Needless to say, it can be a political minefield.
“He’s got that standard sort of politician response to court packing, which is, Well, we don’t want to politicize the courts, which doesn’t really answer the question of what to do if you think the courts have politicized themselves, or that they’ve already been so politicized in one direction that they pose a legitimate threat to democracy and self-governance,” says Stern.
One of President Donald Trump’s goals when he took office was to remake the federal judiciary. By most accounts he is succeeding. Working hand in hand with the Republican Senate, the Trump administration has given lifetime appointments to 91 overwhelmingly white, male, and deeply conservative jurists.
If you see this as a problem, remaking the Supreme Court might look like a solution. And Stern makes the case that court packing isn’t actually an extreme tactic.
“That’s the funny thing—It sounds radical. It sounds like the kind of thing technocrats and American liberals would hate because it goes way far out on a limb,” he says. “But the truth is that it’s definitely the simplest and definitely the most easily obtainable [solution] from where we are right now.”
The people who are advocating for this idea of court packing are spoiling for a fight. Over the summer, Tucker Carlson had academic Ian Samuel on his show to talk about the idea. The two men took turns sneering and giggling at each other.
“What I’m really in favor of is returning the Supreme Court to being a sort of nonpartisan institution that is set way from the sort of fray of ideological politics, but we can’t do that until we add some seats to correct the balance that we’ve lost, really,” Samuel said.
“I love it,” Carlson laughed in response.
Stern says you can tell how serious these court-packing advocates are simply by paying attention to the language they use. They know that conservative critics are going to pounce on them for trying to fill the judicial branch with liberal judges. They don’t try to get away with talking about expanding the Supreme Court or opening up the judiciary. They’ve embraced the idea of packing the courts. It’s a way to neutralize criticism before it happens. Or maybe it’s just a way to throw the first punch.
“When you tweet, ‘Pack the court,’ how is increasing the partisan Democratic representation on the court indeed nonpartisan?” Carlson asked his guest.
“Well, you know, when you encounter a jewel thief, you must steal things back, Tucker,” Samuel replied.
Stern says that this idea of expanding the Supreme Court started to be discussed more earnestly after Brett Kavanaugh was sworn in as an associate justice.
“After Kavanaugh’s confirmation, groups like Pack the Courts really became a prominent part of the conversation—no longer fringe voices,” he says. “People started to recognize that we now have five extremely conservative justices on the Supreme Court for the first time in a really long time, since the early 1900s. Rather than wait for the court to inflict terrible damage on democracy, these so-called court reformers are trying to figure out how to fix the problem before it even really begins.”
Here’s one issue with this idea: that “terrible damage” to democracy is in the eye of the beholder. For some people, this is a victory.
“Especially people who supported the Senate blockade of Merrick Garland in 2016,” says Stern. “After Justice Scalia died, President Obama still had nearly a year left in office, and of course Republicans led by Mitch McConnell created this new rule that no Supreme Court justice can be appointed within the last year of a president’s term.”
Merrick Garland was this real compromise choice in a lot of ways. But GOP lawmakers wouldn’t budge.
“He was a foolish choice in a lot of ways too, because President Obama was unable to recognize just how obdurate Republicans would be,” Stern says. “He was definitely a moderate compromise choice. He would not be the selection to push the court into a new liberal golden age. He was a moderate, and still Republicans refused to even give him a hearing.”
Merrick Garland was supposed to be this peace offering to the Republicans, and President Barack Obama still had no success.
“A lot of Democrats feel like not only did Obama get screwed over, but he got screwed over after being the most reasonable man in the room, and instead Neil Gorsuch, a very far-right conservative, got that spot,” says Stern. “I think a lot of these people pushing for court reform are saying, We tried being moderate. We tried being reasonable. We tried the peace offering. None of it worked, so it’s time for hardball politics.”
Hardball—that’s what court packing is. And in many ways, it seems kind of like a classic authoritarian move. But Stern argues that authoritarianism is also in the eye of the beholder.
“We’ve long had this struggle in American democracy between the power exercised by the courts and the Supreme Court and the democratic branches,” he says. “Andrew Jackson famously, perhaps apocryphally, said, ‘Chief Justice Marshall has made his decision, now let him enforce it.’ The presidency of Abraham Lincoln was in some ways defined by a refusal to comply with court orders and a sort of rejection of the Supreme Court’s legal authority.”
Stern continues: “Those tussles are famous but not necessarily famous examples of American authoritarianism. I think we’ve come to view them, or most of us have come to view them, as a kind of formative point in the court’s development at a time when it was not as clear as it is today that the Supreme Court gets to say what the law is, and the other branches are supposed to just automatically respect that.”
I was surprised, when I looked into it, how flexible the number of Supreme Court justices was over the years. George Washington had six, and then Thomas Jefferson added some people. Abraham Lincoln added one with the pure motive of getting through policies he wanted in regard to slavery. And Stern says that’s an important note to remember.
“We don’t really look back on them adding seats and say, Wow. What a couple of authoritarians they were. How dare they mess with the divinely ordained number of justices to sit on the Supreme Court. None of this is new. We’re reviving an age-old debate at a time when it feels especially pertinent and topical,” he says.
Stern is painting this picture of a flexible court, with different presidents adding and subtracting justices as they go. Franklin Delano Roosevelt was the last president to really try to change the composition of the Supreme Court.
“FDR came into office with these New Deal reforms that dramatically expanded the size of the federal government, and also generally the government’s power over employers,” says Stern. “At that point, the Supreme Court was still in its so-called Lochner era, when it would strike down basically any federal law that tried to regulate working conditions and employment and anything outside of direct shipment of interstate commerce. Also, it would strike down really basic protections like minimum wage laws and maximum hour laws. FDR saw a lot of his early reforms either clipped or struck down entirely by the Supreme Court.”
But when FDR won in a landslide election in 1936, he devised a plan, largely in secret, to expand the court to up to 15 members.
“The idea was basically to either push the old conservatives off the court or infuse the court with young blood,” says Stern. “There are a lot of reasons why this plan failed. I would say that one of the main reasons is that FDR never correctly articulated what was at stake. He never actually came out and said, Our entire democracy, the power of the people to regulate and govern themselves, is at stake.”
Instead, Stern says that FDR essentially slandered the justices as elitist, grumpy old men, which led to some negative repercussions.
“This massive backlash, which accused him correctly of being super disingenuous, eventually gave Congress the thumbs-up to vote this down by a very lopsided majority,” Stern says.
For Stern, the lesson of what happened with FDR is that politicians who want to pack the court really have to communicate why it is a necessary change.
“A lot of people who study it highlight that this was probably FDR’s most dictatorial move, and it wasn’t just because of the substance of the proposal,” Stern says. “It was the way that he conceived it in total secrecy. He told very, very few people and then just sprung it on the world and presented it as a fait accompli, as though there could be no serious debate and that all of his totally bogus pretextual reasons for it should be taken at face value.”
He continues: “I mean, even [Louis] Brandeis—who was the most liberal justice on the court at the time—basically came out against it because he was also the oldest justice. He said, Look, FDR. I’m an old man and I’m doing my work just fine. If you want to pack the courts, please don’t malign us as lazy old dudes because we’re doing our work. It’s not our work pace that you dislike. It’s what we’re churning out.”
When I read about FDR and what he did with the Supreme Court, what stood out to me was that he was trying to get the New Deal through—that was a very, very big piece of legislation, and it ran into a lot of opposition from the Supreme Court. And now we’re again at this moment when we’re talking about another New Deal, and we’re talking about ways to do big things in Washington.
“At this point, I think it’s fair to say, given the precedent set under Obama and Trump, pretty much anything Democrats pass if they ever get power back is going to be blocked by a lower court, and it’s going to go to the Supreme Court,” Stern says.
But court packing is rarely discussed in a vacuum. Whenever people bring up the idea, they’re also talking about other things, like giving statehood to Puerto Rico, or somehow changing the calculus of who has a voice in American democracy. But when you say these ideas out loud, to some people, they sound extreme and scary. But Stern says the public should think of things differently.
“In terms of the broader constitutional reforms, if somebody proposed the [idea of the] Senate today and it didn’t already exist, we would all think that they were totally crazy,” he says. “We have a basic principle of one person, one vote in this country, and yet the Senate converts a resident of Vermont’s vote into a bunch more votes than a resident of Texas’ vote … the people who are saying, Let’s reform the Senate and reform the court while we’re at it to make sure it sticks, they’re trying to have everybody take a step back from the status quo and say, Look how we got here. Is this really where we want to be? Is this the place that America should be? The only Western democracy that still has this extreme malapportionment? If not, what are the vibrant ideas that we can engage with to try to fix the problem?”
He adds, “If we get too into the weeds with originalism and we have this love affair with how everything is right now, or how it was in 1789, then we kind of forget that we’re supposed to be growing, and when democracy stands still it’s kind of like a shark, right? It just dies.”