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Democrats' Court-Packing Plan
Jun 10, 2019 at 02:22 PM
Photo by Mark Fischer

The Quick Facts

  • Recently, some Democrats have endorsed plans to alter the composition of the Supreme Court by adding additional justices, an idea that has been labeled “court-packing.”
  • Among the most vocal proponents are some of the 2020 Democratic presidential hopefuls, including Kamala Harris, Elizabeth Warren, Beto O’Rourke, Kirsten Gillibrand, and Pete Buttigieg.
  • Buttigieg and O’Rourke have introduced specific court-packing plans during their campaigns. Both plans call for a Supreme Court comprised of 15 justices, but Buttigieg’s specifies that the Court should contain five Democrats, five Republicans, and five justices selected by the other ten. Other court-packing proposals include adding term limits for justices.
  • Calls to consider court-packing proposals increased over the last week after Mitch McConnell commented that he would make sure any 2020 Supreme Court vacancy was filled before the presidential election, despite blocking the nomination of Merrick Garland in 2016.

Food For Thought

Is adding additional justices to the Supreme Court a necessary reform, or a threat to a Democratic institution?

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The Washington Post

McConnell makes a good case for Democrats to pack the Supreme Court

Paul Waldman
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Our Commentary

This opinion piece by Paul Waldman from The Washington Post makes these kinds of points:

  • Mitch McConnell has recently proved his hypocrisy when it comes to Supreme Court nominations: after blocking Merrick Garland in 2016, he now says he would fill a vacancy in 2020. He is making it “crystal clear that changing the size of the court the moment they have the chance is the only way to restore something faintly resembling democratic representation and majority rule.”
  • McConnell’s manipulation of the Supreme Court is “the most egregious and despicable violation of democratic norms we’ve seen in our lifetimes,” and something must be done to rectify the situation. Rebalancing the court is the most obvious answer: increasing the number of justices so that Democrats regain the majority they would have had with a Garland confirmation.
  • Some critics of this type of plan say that Republicans will simply do the same thing once they are back of power, and we would be caught in an “endless tit-for-tat.” This may very well happen, “but at this point, what’s the alternative?”

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The Nation

Don’t Just Pack the Court. Reimagine It.

Joshua Holland
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This commentary by Joshua Holland from The Nation includes these types of opinions:

  • Mitch McConnell’s egregious overreach when it comes to the Supreme Court has forced Democrats to revisit fundamental assumptions about how the Court functions. There has been much talk of rebalancing the Court by adding justices, but “packing the Court is just one potential avenue of reform among many ideas that have long circulated among legal experts,” and Democrats should consider all possibilities.
  • Packing the Court could lead to significant political blowback that could hurt Democrats in the long term. There are potentially better solutions, like jurisdiction-stripping: “limiting the kinds of issues and cases the courts can address, or even overturning judicial review, which allows the Supreme Court to overrule other branches of government.
  • Another approach could be to reform the confirmation process: perhaps set up a bipartisan panel to review candidates and require a supermajority to agree on potential jurists, and then implement term limits. “The key here is that we shouldn’t limit the debate now emerging to whether Democrats should add a couple of justices”— it would be best to think more broadly and about how to restore the legitimacy of the Supreme Court.

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National Review

Against the Democrats' Court-Packing Scheme

Dan Mclaughlin
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Our Commentary

In this opinion piece from National Review, Dan McLaughlin expresses these types of views:

  • Count packing is a truly terrible idea that does not have the support of the American public. Such a move would destroy the idea of judicial independence and “end the American experiment of the rule of law and a government of separated and limited powers.”
  • The Supreme Court has certainly been influenced by politics, but certain facets like life tenures and rare vacancies have kept the Court out of the direct control of politicians. To allow the Court to be “swamped with new appointees whenever the president wants new precedents” would undermine the Court’s integrity irreparably.
  • If we let the legislative branch wreak havoc on the Supreme Court in this way, it could send us down a path toward “the dissolution of two centuries of stable self-government.” Smart Democrats realize that if they attempted to pack the court, “Republicans would retaliate in kind and the Court would be destroyed in the process.”

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Fox News

Supreme Court needs to stay at nine justices – Dems’ court-packing plan is all wrong

Marco Rubio
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Our Commentary

This opinion article by Senator Marco Rubio from Fox News offers these sorts of perspectives:

  • Democrats’ proposal to add additional justices to the Supreme Court is dangerous and threatens our democratic institution. This is why we must pass a constitutional amendment that prevents Court packing for partisan gains.
  • Democrats who are arguing for court packing are using rhetoric that suggests “our institutions are increasingly unable to resolve modern society’s conflicts.” This is an erroneous premise, and it dangerously fuels an erosion of trust in our Democracy.
  • This “perceived illegitimacy of institutions – from local election boards all the way up to the Supreme Court – threatens to undermine the very nature of our nation.” Our institutions, like the Supreme Court, are what has kept our Democracy stable: “we must fight to maintain and restore them.”

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