This election cycle, the phrase ‘packing the court’ has become political fodder once again. A notion rooted in President Franklin Delano Roosevelt’s failed 1937 “court-packing plan.” FDR had legislation introduced in Congress to expand the size of the court by one new judge for every sitting judge that did not retire at age 70. His plan was to force the retirement of older judges he could replace with progressive judges to ensure parts of his New Deal plan passed constitutional scrutiny, the concept has waned in and out of American politics over the last century.
Today’s chants of court-packing echoing from the left to add two or even four new judges have far-left progressives seeking the opportunity to add judges to a court where no vacancies exist. Americans have every right to be weary of politicians who seek to alter the court and candidates like Biden should be equally cautious.
During the Vice-Presidential debate, Senator Kamala Harris would not disclose her position publicly, taking a clue from Former Vice-President Joe Biden, who earlier in the campaign said he would reveal his position on court packing after November 3rd. These statements did not leave voters convinced of the ticket’s intentions. In fact, it casts further doubt on the Democrat candidates’ forthrightness on this and a host of other issues where their murky positions leave voters scratching their heads.
According to a New York Times/Siena College poll conducted from October 15-18, 58% of likely voters said that Democrats should not look to increase the size of the Supreme Court, whereas 31% were supportive, with 11% of respondents undecided. The numbers were even more skewed when broken down by party, with 57% of Democrats in favor and 28% opposed, and Republicans opposed 89%.
After months of dodging the issue, the Vice President finally spilled the beans about his designs. In an interview with CBS ‘60 Minutes’ last week, Biden put forth his proposal to establish a bipartisan commission of constitutional scholars to propose recommendations for judicial reform. Without overtly embracing the notion of packing the court, Biden said “There’s a number of alternatives that are — go well beyond packing.” This ominous statement could lead one of two directions, a lack of plan or desire to change the courts; or a massive shift in how power is handled in DC with eyes on ensuring ideas rejected by the electorate in the last two elections becomes law.
It is well known that the prospects of the 45th President to install three Supreme Court justices was a significant factor motivating conservatives to turnout at the ballot box in 2016. With a successful confirmation of Justice Brett Kavanaugh in 2018, Republicans were rewarded with an increase of three Senate seats, a result which became known as “the Kavanaugh effect.”
With Justice Amy Coney Barrett installed, and a Democrat Presidential ticket leaving cryptic statements about their designs to pack the court, the Supreme Court has the hallmarks to again become a deciding factor in the 2020 election outcome.