Strike 3: Why Biden Commission Should Reject Court-Packing

COMMENTARY Courts

Strike 3: Why Biden Commission Should Reject Court-Packing

Jun 30th, 2021 3 min read

Commentary By

Thomas Jipping @TomJipping

Senior Legal Fellow, Center for Legal and Judicial Studies

David Bainbridge

Summer 2021 Member of the Young Leaders Program at The Heritage Foundation

Rep. Mondaire Jones speaks during a news conference to announce legislation to expand the number of seats of Supreme Court judges in Washington on Thursday, April 15, 2021. Caroline Brehman / CQ-Roll Call, Inc / Getty Images

Key Takeaways

This plan for a hostile takeover of the Supreme Court has been rejected not once, but twice, in American history. The commission can put it to rest for good.

Opposition to adding “new and unnecessary” Supreme Court positions had a common theme. It would destroy the judiciary’s independence.

The majority twice refused to place power over principle because, in the Senate Judiciary Committee’s words, judicial independence is “immeasurably more important.”

President Joe Biden’s Supreme Court commission is up and running, keeping alive the calls for court-packing. This plan for a hostile takeover of the Supreme Court has been rejected not once, but twice, in American history. The commission can put it to rest for good.

Court-packing means expanding the number of positions on a given court for the purpose of changing its decisions. Every president appoints judges as existing positions become vacant. Congress periodically creates new judgeships because certain courts need more judges to handle caseloads. Neither of these constitutes court-packing. Congress has always known the difference.

Many Americans may have heard about how President Franklin Roosevelt’s proposed court-packing scheme failed in the 1930s. During Roosevelt’s first term, the Supreme Court struck down several laws enacted to address the Great Depression because they exceeded Congress’ power.

In 1937, after a landslide reelection and massive Democratic majorities in Congress, Roosevelt proposed a plan that would add up to six more Supreme Court justices if its more senior (and problematic) members did not retire. He said he wanted to appoint justices who would “enlarge constitutional power” so that Congress could address “extraordinary conditions.”

Congress, led by Roosevelt’s own Democratic Party, said no. The Senate Judiciary Committee report opposed it, calling it “an attempt to change the course of judicial decisions” by “neutralizing the views of some of its present members.”

This effort to “overwhelm them with new members,” however, would “undermine the independence of the courts” and “expand political control” over the judicial branch. Three-quarters of the senators who voted to reject the plan in July 1937 were Democrats.

This was not, however, the first time that Congress rejected court-packing to preserve the courts’ independence. President John Adams lost his reelection bid and his Federalists lost their congressional majority in the 1800 election.

Since their replacements would not take office until March, however, the Federalists hatched a plan to put their stamp on the judiciary. Their quick passage of the 1801 Judiciary Act reduced the Supreme Court’s size from six to five seats, effective at the time of the next vacancy. It also created 16 judgeships on six new lower courts that Adams rushed to fill.

President Thomas Jefferson and his Democratic-Republican allies in Congress passed the 1802 Judiciary Act to dissolve the 16 new judgeships and restore the Supreme Court to six seats. But it is what Congress did not do that should resonate today.

In the House, Rep. John Bacon of Massachusetts, a Democratic-Republican, spoke in favor of the new Judiciary Act. He also said he would restore the seat that the Federalists eliminated and would “add two or three more judges to the Supreme Court.”

Federalist opposition was predictable, but none of Bacon’s fellow Democratic-Republicans supported his proposal. Instead, they strongly opposed.

For example, Rep. John Randolph of Virginia, a Democratic-Republican, argued forcefully: “Will not the history of all Governments warrant the assertion, that the creation of new and unnecessary offices … is an evil more to be dreaded than the abolition of useless ones?”

Opposition to adding “new and unnecessary” Supreme Court positions had a common theme. It would destroy the judiciary’s independence that, as U.S. Treasury Secretary Alexander Hamilton had written less than two decades earlier, was “peculiarly essential” in our form of government.

For example, Sen. John C. Calhoun of South Carolina, a Democratic-Republican, asked: “Shall the Legislature with a strong arm, and by an assumed power, destroy [judges’] independence, and thereby their existence as one of the pillars of the Constitution?”

Sen. Williams Wells of Delaware, a Federalist, said, “But how much more ought this measure to fail, when … it is to destroy the independence of the judges, and prepare the way for the subversion of our Constitution!”

And Sen. John Breckinridge, D-Ky., argued, “[N]o increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them.”

In both 1802 and 1937, the presidents’ parties could have enacted legislation to expand the Supreme Court. The Democratic-Republicans had a slim majority in 1802, but Senate rules at the time allowed a simple majority to end debate and bring a bill up for a vote. Democrats had an overwhelming majority in 1937, more than two-thirds that Senate rules required to get the job done.

The majority, however, twice refused to place power over principle because, in the Senate Judiciary Committee’s words, judicial independence is “immeasurably more important … than the immediate adoption of any legislation however beneficial.”

Biden’s commission and Congress should follow their lead and take the same stand today.

This piece originally appeared in The Daily Signal.