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PoliZette

Dems Lost Kavanaugh Fight, So Now They Want to Change the Rules

One of their ideas is to 'pack the Supreme Court' by expanding the number of justices to restore a liberal majority

Democrats and their army of left-wing activist groups failed to defeat Justice Brett Kavanaugh’s confirmation by the Senate, so now a movement is brewing to pack the Supreme Court to restore a liberal majority on the nation’s highest tribunal.

There are nine justices now, thanks to Kavanaugh’s ascension, with five of them being generally conservative. “Packing the court” would happen if Congress decided to add a number of new seats to bring the total to 11, 13, or some other odd number.

The assumption is that a liberal Democrat will defeat President Donald Trump in 2020 and then appoint left-wing judges to the newly created seats.

This is not a new song, as President Franklin D. Roosevelt tried and failed to pack the court after it struck down many of his major New Deal economic and welfare reform programs during the Great Depression.

“The issue is coming up now because people on the Left feel that there’s a certain amount of skulduggery that has gone on to drive the court very far to the Right,” New York University School of Law professor Barry Friedman told LifeZette. “It’s a system that rewards the luck of when justices retire or leave the court otherwise.”

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Friedman said, “Democrats feel the court has been shoved very far to the Right, and they are looking for remedies to that … the court exercises an unbelievable amount of power in society, and it does it largely without Democratic control.”

South Texas College of Law Houston professor Josh Blackman told LifeZette the idea was discussed in 2017 among academics almost immediately after Justice Anthony Kennedy announced his retirement, with some discussions beforehand. But as the confirmation process reached its end, the idea picked up steam.

“What happened with Justice Kavanaugh with the confirmation process, I think, probably, emboldened people in favor of court packing to the extent that people weren’t talking about it before,” said Blackman, who is also a founder of the Harlan Institute and FantasySCOTUS. “I think the politicization of the Kavanaugh hearing will probably make those calls a little bit more vocal, a little bit louder.”

Whatever the reason is behind the movement, Blackman said, “I think it is a terrible idea — I don’t think it should be done. I think it was a mistake when President Roosevelt tried it, and I think it would be a mistake if the Democrats tried it in 2018.”

Mistake or not, Blackman said he believes Democrats are “going to try it anyway because their vision is that the Supreme Court lacks legitimacy if it’s not favoring liberal causes.”

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An immediate obstacle to the Democrats would be justifying a specific number of added seats.

“Once you go beyond nine there is no logical stopping point,” Blackman said. “It will be tit for tat, where one side adds a justice and the other side will add a justice and then, after a while, the Supreme Court doesn’t have the same sort of influence it once had. There is no way to do it effectively. There is no logical stopping point.”

Despite the difficulties, however, the idea of enlarging the court has been done in the past and could be again.

“Expanding or shrinking the size of the court is a fairly common idea in U.S. history,” Roosevelt Institute senior fellow Todd Tucker told LifeZette. “Congress has changed the size of the court on eight occasions, lawmakers have introduced legislation to change the court size on at least 20 occasions, and constitutional amendments to do the same at least 15 times.”

“Once you go beyond nine there is no logical stopping point. It will be tit for tat, where one side adds a justice and the other side will add a justice and then, after a while, the Supreme Court doesn’t have the same sort of influence it once had.”

Those changes got results, too. “Each effort was pretty effective in getting the court to update its preferences to come into line with the winners of elections,” Tucker said.

FDR introduced the Judicial Procedures Reform Bill of 1937 w to increase the number of justices to 15 in order to bypass the conservative court at the time. He had congressional support, but the bill eventually failed when it got held up in the Senate Committee on the Judiciary.

“FDR wasn’t as unsuccessful as people think,” Maurer School of Law at Indiana University Bloomington professor Ian Samuel told LifeZette. “He proposed adding six seats to the court, and his allies in Congress were actually on board with adding some seats. They didn’t know whether they wanted to go all the way to six but they were thinking about smaller numbers and were on board.”

Samuel explained that one of Roosevelt’s most important congressional allies died, and the debate fell to the wayside. But the court saw what was happening and started to change its approach, allowing the New Deal to go forward, which was the whole point from the start.

meet the author

Connor D. Wolf covers Congress and national politics and can be reached at [email protected].