Democrats are still licking their wounds after the Dobbs v. Jackson Women’s Health Center ruling. As was expected, we saw a renewed push for Joe Biden to pack the court. Franklin Delano Roosevelt infamously tried to pack the Court to save various aspects of his New Deal agenda.
After Trump successfully reshaped the Supreme Court, there were renewed calls among the left for the next Democrat president to pack the court upon taking office. But in 2020, Biden, knowing very well that court-packing isn’t popular, was conspicuously silent on the issue during the campaign. We knew that his failure to dismiss the idea meant that he had every intention of doing so if he won, and sure enough, soon after taking office, he formed a Presidential Commission on the Supreme Court that would “study” the issue.
Biden didn’t want to endorse the idea outright but figured a commission would likely give him cover to expand the size of the court. There’s no doubt in my mind that Joe Biden would have if the commission had endorsed the idea, but, surprisingly, the commission opposed expanding the Court, acknowledging that it would be seen as a partisan power grab that “could lead to a continuous cycle of future expansions.”
And so, court-packing was dead… for a while. In the aftermath of the Dobbs v. Jackson Women’s Health Organization ruling, we’ve seen a renewed push for Joe Biden to pack the court. Franklin Delano Roosevelt infamously tried to pack the Court to save various aspects of his New Deal agenda. His failed efforts should have warned future presidents not even to try it, but it won’t die. As of right now, there is no law defining how many seats the court must have, and it’s quite clear that until Congress defines this number, the court will always be under threat from the Democrats for partisan expansion schemes.
This week, House Democrats blocked a Republican measure meant to cap the number of justices on the Supreme to nine. This proved that Democrats will attempt to expand the court the next time they have the White House and adequate majorities in the House and Senate. This is why Republicans must make codifying a nine-seat Supreme Court a key item on their agenda because otherwise, the court will always face threats from Democrat power grabs.
While Democrats are currently more likely to support the idea, court-packing has typically not been politically popular. In 2020, a poll found that a majority of Americans oppose it. Even the late Ruth Bader Ginsburg opposed expanding the court.
“I have heard that there are some people on the Democratic side who would like to increase the number of judges,” Ginsburg said in 2019. “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court.”
“Nine seems to be a good number, and it’s been that way for a long time,” she observed.
It says a lot that the Democrats want to leave the opportunity to pack the court available, while the Republican Party wants to eliminate the possibility of court-packing for good. Democrats are constantly threatening longstanding institutions with their partisan power grabs. Sadly, it has become necessary for the GOP to take extraordinary efforts to protect those institutions from the Democrats.
