In April, President Biden created a commission to study expanding the Supreme Court. Expanding the court would allow Biden to appoint new judges, presumably to offset the conservative judges with liberal judges. This tactic is commonly known as “court packing” and the best known attempt to do this was by FDR.
On the face of it, expanding the court does seem constitutional. Congress does set the size of the court and it did vary from six to ten members until 1869. There are those who argue that it is not constitutional, as one would expect. Also, as one would expect, people tend to shift their position on this issue based on their political allegiances and who holds the White House and Congress. But, as always, my approach is to present a consistent and principled position that does not depend on my political interest now. Politically, I would certainly favor Biden packing the courts. But my principles are not simply a matter of what I favor at the moment. For the sake of the argument to follow, let it be assumed that court packing is constitutional. If it is not, then what follows would be irrelevant. Interestingly, it seems likely that the Supreme Court would need to rule on the constitutionality of expanding the Supreme Court—so if one party holds the majority, they could always block expansion in this manner. But now to the discussion.
The most obvious argument against packing the court is based on the need to preserve the norm of not using this tactic. Politics, like any game, depends heavily on the participants agreeing to and abiding by the rules of the game (be they formal or informal). While some players stick to the norms out of respect, others follow them for pragmatic reasons: if they break the norms, then the other players will respond by punishing them or by breaking the norms themselves. Since court packing seems constitutional, what serves to keep people in check are the consequences of breaking the norm of not using this tactic.
The obvious defect with court packing is that once one party uses the tactic to gain a majority, they have set the precedent for the other party using the same tactic when they take power. So, if Biden packs the court in his term, the next time the Republicans can do so, they would be fools to not pack the court in their favor. And then when the Democrats take power again, they would be fools to not pack the court again. One could thus easily imagine an ever-expanding Supreme Court. It would be better, one might argue, to stick with the existing system and follow the established norm of a nine-person court. Each should be content to wait for the deaths or retirements that would allow them to take control of the court. There is, however, an obvious counter to this: Mitch McConnell.
While there is nothing in the Constitution that forbids a Supreme Court vacancy being filled even if an election is close and the general norm was that a President could do just that, Mitch McConnell and his fellows blocked President Obama’s effort to fill the vacancy on the court in 2016. In 2020 McConnell and his fellows took the opposite position and rushed through a nominee to the Supreme Court. If we take McConnell’s principle to be that he will do anything to gain and hold power for himself and his party, then he acted consistently. But if we listen to the reasons and arguments he advanced to justify his actions, then he acted inconsistently: either he was wrong in 2016 and that position should have gone to an Obama nominee or he was wrong in 2020 and that position should have gone to a Biden nominee. He cannot be right in both cases and thus the Democrats can rightfully claim they were unjustly robbed of one seat on the court. As such, McConnell has changed the norms of the game: he has set the precedent that when it comes to the Supreme Court, then one side can do what it needs to do to ensure it has a majority.
Since McConnell has shown that he cannot be trusted to abide by the norms and that his principle is clearly that a party should do whatever it takes to secure a majority on the court, he and his fellows have no grounds on which to criticize court packing. If the Democrats add one seat and fill it, then they would be addressing McConnell’s breaking of the norms and it would be reasonable to see this as a justified political move. If they go beyond this, it would also be justified under McConnell’s own principles (or lack thereof). Just as he did, they would be using political means in violation of the norms to secure a majority on the court. Those who were fine with McConnell’s maneuvers will certainly hate that the Democrats are playing politics to pack the court, but they have no grounds for complaint: they have already agreed that what matters is controlling the court and any protests about Constitutionality or fairness must be seen as empty rhetoric.
It can be argued that the Democrats should not pack the courts for the reason I gave above: it will set of a cycle of packing and be but a short-term gain. But McConnell has shown that politics as it is played is about these gains and he shows no signs of repentance or willingness to hold his desire for power in check the next time he has an opportunity to use it. This, then, is the core of the problem: if the Democrats stick with the norms and the Republicans persist in violating them, the Democrats will continue to lose these battles. If the Democrats start breaking the norms to counter the Republicans, then the damage to the norms will accelerate. The solution is, obviously, for both parties to restore the norms. But the Republicans have proven that they cannot be trusted.
So, packing the court will harm the United States, but to not pack the court will also be harmful. It is a losing option either way, but not packing the court is probably worse on the assumption that the Republicans are beyond redemption.