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In the US, the Supreme Court is arguably the most powerful institution, as it is the only body which has been able to set laws over some of the most controversial issues in American politics. These, chiefly, are gun control, abortion and LGBTQ+ rights. This is why the debate over the Court has become so important in recent years and the next part of that debate is whether to expand the court.
Expanding the court, also called court-packing, is the idea of increasing the number of Supreme Court Justices. Currently, the Supreme Court contains nine Justices, who serve for life once appointed. If President Trump’s replacement for Ruth Bader-Ginsburg, Amy Coney Barrett, is confirmed then the Court will have a 6-3 conservative majority.
Partisan takeover of the Court and long tenures for Justices were largely unforeseen problems by the Founding Fathers. They did not foresee that the current level of partisanship could be reached. Furthermore, life expectancy wasn’t as long as it is now, so they also did not foresee Judges regularly serving for 20 or more years, as most Justices do now.
Court-packing is not simply a partisan issue. Although Republicans are currently against Court-packing, so are some Democrats. This issue recently came to prominence during the 2020 Democratic primary, with five candidates supporting some plan to change, expand or reform the Court. Iowa caucus winner Pete Buttigieg even made his plan central to his campaign platform. However, there is no clear agreement between supporters as to how to increase the Court. There have also been suggestions to keep the court at the same size, but to introduce restrictions such as a term limit, a forced retirement when a Judge reaches a certain age or an Independent commission to nominate Judges to the Court.
Supporters of expanding the Court argue that the new conservative majority will be made up using two stolen seats. In 2016, after the death of Judge Antonin Scalia, President Obama nominated Merrick Garland to the court seven months prior to the Presidential election. The Republicans in the Senate refused to hold a hearing to confirm Garland, under the premise that in an election year, the seat should remain open so that the new President can nominate the next Supreme Court Justice. This set a new precedent. Therefore, when Ruth Bader Ginsburg died last month, Democrats assumed that the seat would be filled by the winner of the 2020 election. However, with the nomination of Amy Coney-Barrett set to pass through the Senate prior to the election, this will not be the case.
Court-packers argue that it is therefore necessary to rebalance the court to prevent an overwhelming conservative majority for decades to come. However, opponents to Court-packing argue that it is illegitimate and immoral to expand a court for political gain, given that court expansion in a liberal direction could change the outcomes of the rulings of the court for generations. This is especially significant as, in Republican eyes, all the judges were nominated by democratically elected Presidents and confirmed by a democratically elected Senate.
There is no constitutional impediment to expanding the Court: the Founding Fathers never specified how many Justices should be on the court. In fact, the Court has changed in size seven times in its history so there is a line of reasoning which states that there is precedent to expand the Court now. However, the last time the Court changed in size was in 1870 which Republicans argue creates a precedent of there being nine Justices on the bench.
The idea of court packing is certainly not going away. In a highly partisan America, the Supreme Court is likely to continue to gain power as it is the only body which can set laws over highly controversial issues. Therefore, there will be ongoing debate over the overall ideology of the court. The issue will also continue to raise its head this election cycle because although Biden has dodged answering the question so far, he has promised to announce his view on expanding the court prior to the election on 3 November.