The nine-justice system accelerates decison making within the judicial branch and has been responsible for many landmark cases.
Due to the absolute madness that the Kavanaugh confirmation has become, the Supreme Court has reentered the forefront of the American political debate. Setting aside the drama of the past week and a half, the current SCOTUS situation looks grim. Trump is now appointing his second justice to the highest bench, and even if Kavanaugh isn’t confirmed, Trump will appoint someone equally as conservative. That would make the divide on the court lean conservative by a margin of 6-3, and for that reason, court packing has been brought into the discussion.
Court packing, which refers to the strategy of filling the Supreme Court with enough justices to push the court onto the desired side of the political spectrum, is a dangerous idea, but it’s an idea that many on the left have mentioned considering once a Democrat is living in the White House again. Strictly speaking, the Constitution does not limit the number of justices who can sit on the Supreme Court, but such a partisan move would be an ill-advised attempt born out of the need to change the current situation. Yes, everything in politics looks hopeless right now, but for three reasons, court-packing will hurt more than would help.
First, court packing would further divide the nation and take away the Democrats’ legitimacy. Though Republicans currently have governmental control, the party loses legitimacy day by day. They stand behind a president who makes unwarranted partisan attacks without thinking about the consequences. If the Democrats decided to court pack, they would further polarize the nation and would stoop down to the level of an opposing party that they claim to hold a moral superiority over. Additionally, the Republicans could then justify court packing for themselves once they won the White House back again.
Second, no branch of government has affirmed the progressive nature of American politics more than the Supreme Court. Brown v. Board of Education made segregation illegal at a time when Democrats still considered the South an electoral stronghold, Roe v. Wade protected a woman’s choice to make her own medical decisions at a time when not one woman had a seat in the Senate and Obergefell v. Hodges settled the issue of marriage equality once and for all, but these would likely fail to pass in the current House of Representatives. All three of these decisions protected minorities and those unrepresented long before a bill or constitutional amendment could have been passed to do the same.
However, Congress was not alone in its inability to progressively move America forward. In each of these three cases, the president in office either didn’t agree with the Supreme Court’s forward-thinking view on an issue or felt too constrained by a divided government to act himself. The judicial branch was the only branch that could have made these decisions, and it took the most honored court within that branch to issue such wide and sweeping changes. The Supreme Court’s legitimacy was what granted it the power to make these changes, and packing the court would only limit its ability to make similar decisions in the future.
Third, the design of the Supreme Court insulates its justices from both the opinion of the other two branches and the public at large. Supreme Court justices write their opinions without having to worry about what the middle-class suburban male in Ohio thinks about immigration. This is not to say that justices don’t hold their own biases but making decisions based more on how the Constitution is written rather than how a certain demographic feels lends them a level of objectivity that the president and Congress could never possess.
The way the Constitution partially shields the judicial system from public opinion also lends the Supreme Court a level of energy that Congress lacks. Court packing would not give the public much more of a say about who sits on the bench. However, to give the court the liberal slant that Democrats want it to have, it would require increasing the total number of justices to 13. With 13 people debating the way we interpret our founding document, decisions would take much longer to make. This would prevent the court from making important rulings on matters that require the utmost urgency and allow the president to make those interpretations instead.
Court packing would effectively hamstring the Supreme Court and the judicial system that depends on it. The Supreme Court has not been perfect and has made some bad choices in its history. Nonetheless, many of America’s proudest moments after World War II came as a result of a Supreme Court decision. To court pack simply for political purposes would prevent any future decisions like the ones elaborated on earlier. Minorities and those unrepresented in Congress would have to rely on the executive branch and state governments to protect them — two parts of government that have failed at that duty time and time again.