A Look Back On ‘Court Packing’ Attempts in US History

According to reports, President Biden is considering the possibility of expanding the Supreme Court.

The notion of “court packing” — adding more Justices to erase the conservative Supreme Court majority established by former President Trump — has been floated by Democratic leadership since the 2020 election cycle. Many left-wing political figures — including Democratic Sen. Joe Manchin (D-WV) and deceased Justice Ruth Bader Ginsburg herself — staunchly opposed such proposals.

Nevertheless, the White House announced last Friday that Biden signed an executive order forming a commission composed of a “bipartisan” group of experts on the “court reform debate.” The commission — staffed largely by constitutional revisionist law professors — will examine the “length of service and turnover of justices on the Court,” as well as the “membership and size of the Court.”

Although President Biden gave the commission 180 days to complete its report, some Democratic politicians are already readying their attempts at changing the Supreme Court’s composition.

As The Intercept reported, Congressional Democrats are planning to unveil legislation that would “add four seats to the high court, bringing the total to 13, from the current 9.” The bill is sponsored by House Judiciary Committee Chair Rep. Jerry Nadler (D-NY), Rep. Hank Johnson (D-GA), and Rep. Mondaire Jones (D-NY), as well as Sen. Ed Markey (D-MA).

The Democrats’ attempts at court packing are by no means new in American history. During politically tumultuous eras, officials on both sides of the aisle have tampered with the Supreme Court’s composition in order to enact their agendas.

New Seats

The Supreme Court did not always have nine seats. In fact, it started with six.

Keith Whittington — a political science professor at Princeton University, as well as a member of Biden’s Supreme Court commission who appears to disagree with modern-day court packing — wrote in Newsweek that the first Congress created a Supreme Court with six total Justices. President George Washington was able to appoint every Justice on the Supreme Court under the Judiciary Act of 1789, as well as four more Justices throughout his tenure.

For the next century, Justices spent much of their time “riding circuit” — traveling to hear cases across the United States. More seats were added to the Supreme Court as the Justices’ responsibilities increased, alongside westward expansion. Circuit lines were redrawn, and three new Justices were appointed after Kentucky, Tennessee, and Ohio joined the union.

As Whittington explains, politics were “unavoidably involved in the timing of the creation of the new seats.” However, “the expansion of the Court from six to nine justices responded to a widely recognized increase in the judicial workload.” The new states — as well as the Justices themselves — “had been lobbying for the new seats for years before the stars finally aligned in Congress.”

Circuit riding was “significantly reduced” in 1869 and eliminated in 1911.

Post-Civil War Reconstruction

After the Civil War, the Supreme Court was caught in the crossfire of a feud between President Andrew Johnson and a deeply Republican Congress.

As Kyle Sammin wrote for The Federalist in 2016, Republicans were “initially optimistic that Johnson would work with them to ensure their vision of a new, more equal order in the South, but he quickly dashed their hopes.” Johnson — a Republican who had identified with the Democratic Party until his ascension to the Presidency — “pardoned almost all of the former rebels and sought to readmit the seceded states with no changes to their legal and political makeup other than abolishing slavery, which was mandated by the Thirteenth Amendment.”

As Southern states began restricting former slaves’ civil rights, Republicans passed their own reconstruction plan and repeatedly overrode President Johnson’s vetoes.

Congressional Republicans proposed and passed the Judicial Circuits Act of 1866, which required that “no vacancy in the office of the office of associate justice of the Supreme Court shall be filled by appointment until the number of associate justices shall be reduced to six.” Johnson was thereby unable to appoint more Supreme Court Justices. As late historian Stanley Kutler wrote in 1966, Johnson’s biographers viewed the legislation as “part of the congressional attack upon the ‘foundations’ of the Supreme Court.”

Whittington says that “as soon as Johnson left office, Congress brought the Court back up to nine justices, where it has remained ever since.”

FDR

When Republicans lost control of the federal government during the Great Depression, the question of court packing was again raised — this time, by President Franklin D. Roosevelt and a handful of his Democratic allies.

The Supreme Court had been a terror to Roosevelt’s efforts to pass his New Deal agenda. As History explains, Justices “had struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government.”

Whittington explains that although Roosevelt did not have the opportunity to fill a Supreme Court vacancy during his first term, he “declined to endorse court-packing and refused to even talk about the courts as he cruised to reelection in 1936.”

However, soon after he won a second term, Roosevelt “revealed a shocking plan to ‘reorganize’ the federal judiciary.”

In 1937, according to History, Roosevelt issued a proposal “to provide retirement at full pay for all members of the court over 70.” For Justices refusing to retire, an “assistant” with full voting rights was to be appointed. 

Although the Senate was controlled by Democrats, the Senate Judiciary Committee issued a scathing retort to Roosevelt’s agenda.

“This is the first time in the history of our country that a proposal to alter the decisions of the court by enlarging its personnel has been so boldly made,” they wrote. “Let us now set a salutary precedent that will never be violated.”

“Let us of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact,” they proclaimed. “We are not the judges of the judges. We are not above the Constitution.”

The plan — which effectively would have granted Roosevelt the majority in a fifteen-member Supreme Court — was never enacted. Nevertheless, the Supreme Court upheld the National Labor Relations Act and the Social Security Act, which remain lasting legacies of the Roosevelt presidency, as constitutional.

“Since then, even when the Court has issued decisions that obstructed a president’s political agenda, court-packing was understood to be beyond the pale,” concluded Whittington. “Court-packing would be an announcement that politicians are above the law, and few politicians have been so bold as to attempt to grasp that mantle.”

Time will tell whether Biden — who hung a portrait of Roosevelt above the fireplace in the Oval Office — will succeed in packing the Supreme Court.

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

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