When Is Court Packing Acceptable?
“Court packing” is the term, coined during President Franklin D. Roosevelt’s administration during the 1930s, used to describe attempts to increase the number of justices on the Supreme Court bench. Many are quick to label court packing as nothing more than a partisan or irrational attempt by politicians to circumvent the often-inhibiting effect of the judiciary, but this issue should not be boiled down to one of simple party politics.
To better understand how “political” court packing really is, it’s a good idea to examine times in our history when this power to grow the Court has been utilized, along with the context surrounding efforts to alter the composition of the judiciary.
A Constitutional and Historical Background of Court Packing
The U.S. Supreme Court, created through Article III of the Constitution, originally consisted of six justices, per the Judiciary Act of 1789. The rapid growth of the size of the country, both in population and in land, necessitated the creation of three new circuit courts (the Seventh, Eighth, and Ninth) and three more Supreme Court justices to support them. The passage of the Seventh Circuit Act allowed President Thomas Jefferson to appoint the seventh justice in 1807. Congress later passed the Eighth and Ninth Circuit Acts in 1837, resulting in the swelling of the Court’s size to nine under President van Buren.
Nine sat on the bench until the middle of the Civil War. Afterward, in 1869, Congress passed a law setting the Court’s size at nine. Since the Constitution is silent on the size of the Court, it was accepted that its size could be increased. Interestingly, many think of Congress as having the power to “fill vacancies'' in the Court, but the actual wording of Article II, Section 2 states only that the president has the power to nominate justices and have them appointed through advice and consent of the Senate.
It is often forgotten that the Court has reached ten justices before. In March 1863, at the height of the Civil War, Congress passed the Tenth Circuit Act, which augmented the amount of Supreme Court justices to ten and created a new circuit court for California and Oregon. In a matter of months, Lincoln’s appointee for the tenth seat, a strong unionist, was confirmed to his position on the bench. The timing of this expansion is intriguing as it came at the height of the Civil War when it was still unclear as to whether the Union would prevail in its fight against the Southern secessionists. Before his appointment, the Court consisted of six Democratic appointees and three Lincoln appointees, so this addition bolstered representation of Union interests in the Court.
Yet this brings up a key question: would Lincoln’s government have been justified in appointing a tenth justice for no other reason than to protect the unity of the country in its hour of need?
It is very possible that this was the key motivation, as Chief Justice Taney had made himself a vocal adversary of the Union’s war effort when he authored the 1861 opinion of the Maryland district court in Ex Parte Merryman. He denounced Lincoln’s suspension of habeas corpus as unconstitutional, and while the opinion was ignored, it revealed Taney’s opposition to Northern, unionist efforts.
Expressing his frustration with Taney and the Court in an 1861 speech, Lincoln pointed out that “the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court… the people have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal.” The problem of an unpopular Court during the Civil War was further shown in Prize Cases in 1863, a case dealing with the constitutionality of Lincoln’s order to carry out a blockade of the Southern states in rebellion. A narrow five-justice majority upheld the president’s actions, while Chief Justice Taney joined three other Democrat appointees in a dissent. The lack of unity of this Court must have instilled a feeling of distress in Northerners. This was a time in which adverse judicial decisions forced President Lincoln and Congress to use court packing as a political tool to ensure democratic rule and the realization of Union interests.
Another national crisis, the Great Depression, had lawmakers pondering these same questions. The Supreme Court of the 1930s, like that of 1862, seemed to be out of touch with the needs of the country. This, of course, was not necessarily a problem, as the Court is intended to act based on what the Constitution stipulates rather than what the public wants.
However, this period was particularly damaging to the Court’s reputation and legitimacy because a great portion of New Deal legislation, ranging from that enabling the minimum wage to the Agricultural Adjustment Act, was being struck down as unconstitutional. Schechter Poultry Corp v. United States (1935), Louisville Joint Stock Land Bank v. Radford (1935), and United States v. Butler (1936) are some of the particularly notable cases of this era. The policies that were struck down in these cases were needed to regulate market supply and prices, provide for the unemployed, assure adequate wages for working people, and generate a plan to lift the United States out of the Great Depression. These rulings impeded the efforts of the democratically elected Congress and hurt the lives of everyday Americans who struggled during the worst economic crisis in American history.
The determination of the more conservative, laissez-faire justices to block federal efforts to ameliorate economic hardships acutely interfered with the efforts of Congress and President Roosevelt to get legislation passed. In response to this, President Roosevelt began to push for Congress to pass a bill that would permit him to “pack the court” by nominating additional liberal justices. On February 5th, 1937, the Judicial Procedures Reform Bill was announced in the House, a bill which would allow the president to appoint an additional justice for every sitting justice over 70 years of age.
That same year saw a slew of New Deal policies miraculously being upheld and some previous decisions being overruled. In West Coast Hotel v. Parrish (1937) the Court changed its tune on the minimum wage, and in Steward Machine Co. v. Davis (1937) it upheld the Social Security Tax as constitutional. Policies like these were essential to America’s recovery. The proposed judicial reform legislation ultimately failed, but the mere threat of court packing was at least correlated with a monumental shift in the Court’s behavior. This about-face by the Court is widely regarded as an attempt to maintain its legitimacy in the face of massive public pressure.
Proposing a Strict Standard for the Appointment of Additional Justices
Given these examples of circumstances that led to the potential for court packing, it’s reasonable to ask not whether Court packing is constitutional, but rather whether it should be allowed to occur, and if so, under what circumstances?
Under Article I, Section 9, Clause 2, Congress is delegated the authority to suspend habeas corpus in cases of rebellion and invasion, both situations constituting threats to public safety.
This same kind of strict standard, expanded to include cases of rebellion, invasion, and other significant threats to the public safety, could be used to assess whether Congress should pack the court. In both historical periods discussed earlier, our country’s security and the livelihoods of many citizens hung in the balance. Meanwhile, many justices of the respective Courts of those times disregarded the struggles and attitudes of the country.
These represent times, under a standard similar to that expressed in Article I, Section 9, when the legislative and executive branches would be justified in jointly taking action to ensure that the constitution be interpreted in the right way. The presence of a crisis with a clear and sustained departure from sound interpretation by the Court could be a standard for which to decide when court packing is warranted.
Yet the question remains: what constitutes a “crisis?” And might the term be interpreted more leniently by a political party with an outsized amount of power in Congress or the executive branch? These are important questions to answer, yet there nonetheless is an argument to be made for loosening the grip of the judiciary on the democratic process in times of danger. Temperance and civility, as always, must be common ingredients in the process of deciding whether to pack the Court.
The nature of the Supreme Court is that its jurisprudence and political stances ebb and flow through time. There have been clear periods of conservative control, notably the 1910s to the 1930s, and clear periods of liberal control, notably the 1950s to the 1970s. This has generally been accepted by both sides of the political spectrum because the Court has tended not to engage in activity that threatens the welfare of the United States or its citizens.
However, the Civil War represents a period in our history in which the very fabric that held the several states together was being torn apart. And the recovery from the Great Depression would have been long, arduous, and painful without federal intervention. These are times when governance and policy should be unimpeded by the judiciary. If the Court continues to obstruct the welfare of the country during these times, this could be grounds for introducing a court packing bill. But ultimately, the Supreme Court and its decisions should be respected by the other branches unless its conduct and ideology become a dire threat to the Constitution and our nation.
Proceeding with Caution
In considering this issue, we must also take into account that the Supreme Court is the paramount legal and cultural force in this country. The Supreme Court has been at the forefront of almost every major social and cultural issue in American history. Just in recent times, it set the standards for how we view freedom of speech in Brandenburg v. Ohio (1969) and Tinker v. Des Moines (1969), the Second Amendment in D.C. v. Heller (2008) and McDonald v. Chicago (2010), the Fourth Amendment in Mapp v. Ohio (1961), and the Fifth Amendment in Miranda v. Arizona (1966).
These are just a fraction of the landmark cases that the Court has ruled upon that have had far-reaching consequences on daily life and culture in our nation. The reason this institution is able to persist as an ultimate decider is because of its legitimacy, and that legitimacy flows from its stability. If we decide to endanger that stability whenever the Court issues some rulings that we disagree with, its ability to be the consistent and objective interpreter of the greatest document in American history will crumble.
This is why we must exercise extreme caution when pursuing a policy of appointing additional justices to the Court. It is too important an institution to relegate to the realm of partisan politics. The national and constitutional interests that could be served through court packing are usually far outweighed by the duty we have to protect the sanctity of the judicial branch.
Yet when the time is right, namely during periods in which public safety and the future of our republic depend on legislation and executive action, it would be wise to utilize some mechanism to overcome judicial opposition. And that mechanism is court packing.