Supreme Court Justice Ruth Bader Ginsburg wisely said when asked about the size of the high court, “Nine seems to be a good number. It’s been that way for a long time.” “I think it was a bad idea when President Franklin Delano Roosevelt tried to pack the court,” she added. On this issue, she was absolutely right.
The latest efforts to expand the size of the Supreme Court of the United States should be viewed through political lenses. Last week, one of the major proponents of the new legislation — Sen. Ed Markey — stood outside the Supreme Court at a podium with a sign that read, “Expand the Court.”
Just a few years ago, Mr. Markey stood at nearly the exact same spot by a podium with a sign that read, “#WeNeedNine.” What changed? He liked the majority of the justices back then and he does not now. This was exactly what Ginsburg warned about when she said, “If anything would make the court look partisan, it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we have more people who would vote the way we want them to.”
Although the U.S. Constitution does not require a specific number of justices, there have been nine on the high court since 1869. Politicians previously tried to invoke their will with the size of the Supreme Court.
Members of Congress did not like President Andrew Johnson, in part because of the removal of Secretary of War Edwin M. Stanton. To limit the president’s powers, they voted to decrease the number of justices from 10 to seven. After Ulysses S. Grant was elected president, Congress voted to move the number to nine and it stayed the same for more than a century and a half.
In the 1930s, President Franklin D. Roosevelt did not like a series of rulings made by the Supreme Court he believed undermined his New Deal plans. His administration announced legislation that would expand the Supreme Court to 15 and allow the president to nominate six new justices. Their bill stated that all sitting justices older than 70 would be asked to resign. If they refused, the president would be allowed to nominate an additional justice to the high court.
At the time, six of the nine justices were older than 70. That meant that FDR could add up to 12 new justices to the Supreme Court.
Even Roosevelt’s political allies objected to the blatant power grab. They called it “packing the court.” Ultimately, the idea was defeated in the U.S. Senate on a strong bipartisan vote of 70-20.
Joe Biden, during his early years as a U.S. senator, denounced FDR’s court packing proposal as a “bonehead idea.” He made a convincing case against packing the court.
As recently as October 2019, during a Democratic primary debate, then-candidate Joe Biden said, “We add three justices. Next time around, we lose control, they will add three justices. We begin to lose any credibility the court has at all.” He even told reporters in 2019 that he was “not prepared to go on and try to pack the court, because we’ll live to rue that day.”
Now, Mr. Biden has created a commission to study expanding the size of the Supreme Court. So much for the strength of his convictions.
Supreme Court Justice Stephen Breyer recently stated at Harvard Law School that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.” He continued, “Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.” Both Justices Breyer and Ginsburg were nominated by a Democratic president.
Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center, said that Congress and the people regarded FDR’s plan to pack the court as “an undemocratic power grab.” Let us hope the same is true today, but we can’t count out future efforts to normalize this radical idea.
Last year, Sen. Bernie Sanders said, “Many of the ideas we fought for, that just a few years ago were considered radical, are now mainstream.” Those ideas are still radical; we cannot allow radicals to convince the media that packing the court is mainstream.
When Ginsburg died last year, many celebrated her legacy as one of the greatest legal minds of her time. So why are so many of those same people disregarding her views on the size of the court and, more importantly, the credibility of the court?
Sadly, it seems to all be about power. It is exactly what Ginsburg and so many others warned about in the past. It is time to wake up and reject this asinine power grab.
• Scott Walker was the 45th governor of Wisconsin. You can contact him at firstname.lastname@example.org or follow him @ScottWalker.