Here’s how to avoid partisan court-packing

Eighty-four years ago, President Franklin Roosevelt was celebrating a massive landslide reelection — having won 98 percent of the electoral votes and carrying all but two states. Roughly three-quarters of both houses of Congress were Democrats.

But all was not perfect. The Supreme Court had been declaring some of Roosevelt’s most important New Deal programs unconstitutional — often by unanimous or nearly unanimous votes. FDR was in no mood to have nine unelected “old men” undermine his progressive agenda. So, he tasked Attorney General Homer Cummings with secretly finding a way to deny the pesky Supreme Court the power of judicial review.  

Ultimately, Roosevelt was told that would require a constitutional amendment. But a similar result could legally be achieved simply by having Congress add more justices to the court — hand-picked by FDR and easily confirmed by the large Democratic Senate majority.

It sounded like a winning plan, but it quickly became apparent that the American people were quite fond of their Constitution and its independent judiciary. They flooded Congress with more than 15 million letters opposing the court-packing scheme by a 90 percent majority.

Roosevelt’s bill was overwhelmingly rejected. The report of the Senate Judiciary Committee declared it “an invasion of judicial power such as has never before been attempted,” and declared the bill a “dangerous abandonment of constitutional principle.” It concluded that the court-packing bill “should be so emphatically rejected that it’s parallel will never again be presented to the free representatives of the free people of America.”

Fast forward to 2021, and some Democrats are anxious to try it again. That’s understandable, because the court can otherwise be expected to thwart some of their pet programs.   

In an NPR interview published just eight weeks before her death, Justice Ruth Bader Ginsburg opposed court-packing, declaring FDR’s plan “a bad idea” that would make the Supreme Court look “partisan.” Earlier this month, in a speech at Harvard Law School, Justice Stephen Breyer voiced his strong opposition to court-packing, asserting that it would feed the perception that the court is being politicized and erode public trust.

In a 2016 New York Times op-ed, then-Vice President Biden asserted that to uphold its integrity the Senate needed “to fulfill its constitutional responsibility by considering, debating and voting” on Merrick Garland’s nomination to the Supreme Court. Biden was right, and Senate Minority Leader Chuck Schumer (D-N.Y.) was wrong when he threatened last year that if Senate Republicans moved forward with the Amy Coney Barrett nomination, “then nothing is off the table for next year.” Several of his Democratic colleagues specifically mentioned packing the court in response.   

In reality, the nomination, confirmation and appointment of Justice Barrett was an exercise of established constitutional powers and procedures. Indeed, in his 2016 Times commentary, Biden declared: “I know there is an argument that no nominee should be voted on in the last year of a presidency. But there is nothing in the Constitution – or our history – to support this view.”  

Of course, Biden failed to mention that as chairman of the Senate Judiciary Committee in 1992, he was the author of the doctrine that – when the White House and Senate are controlled by different political parties – the president should not submit a Supreme Court nomination during his final months so the new president, recently chosen by the voters, can exercise that discretion. Sen. Biden’s effort to constrain George W. Bush’s potential opportunity to add a justice to the court (which never materialized) was the primary reason Judge Garland did not get a Senate confirmation vote to become Justice Garland.

If legislators honestly believe that the Supreme Court needs more justices, there is a way this might be accomplished that would not so blatantly “stack the deck” and undermine a coequal and independent branch of the government. There may be a useful parallel in the fact that Article II, Section 1 of the Constitution gives Congress the power to set the president’s salary but provides that the sum “shall neither be increased nor diminished during the period for which he shall have been elected.” This was because the Framers knew from experience that this could lead to corruption. Colonial legislatures had often used promises of pay raises (or threats of pay cuts) to incentivize ostensibly independent governors not to veto bills. 

For similar reasons, any legislation to alter the size of the Supreme Court, or to substantially increase the number of other federal judges, should include a provision that it will not take effect until after the next presidential election. That way, neither party could be certain that a president from their party would be able to select the new judges. And that would likely be at least somewhat more acceptable to the nation. Polls show Republican support for expanding the court at under 20 percent and Democratic support under 30 percent.

President Biden is on record as opposing court-packing proposals. Legislation to accomplish that goal would provide a useful character test, giving him an opportunity to demonstrate that he is America’s president and a man of principle rather than a minion of his party’s radical fringe.

Robert F. Turner served as national security adviser to Sen. Robert P. Griffin from 1973-1979 and was acting assistant secretary of state for legislative affairs in 1984-1985. He was a University of Virginia professor from 1987-2020.