Ask Civics 101: What Is 'Court Packing?' | New Hampshire Public Radio

Ask Civics 101: What Is 'Court Packing?'

Nov 9, 2020

Today's Ask Civics 101 question: What is "court packing?"

Read on, or listen to this short episode for the answer.

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Today we answer a question from listener Felix Owusu. He wrote, “We've heard so much about 'packing the Supreme court' since the passing away of Ruth Bader Ginsburg. How does packing the court work?”

We spoke with Robinson Woodward-Burns, Assistant Professor of Political Science at Howard University and author of the forthcoming book, Hidden Laws: How the State Constitutions Stabilize American Politics.

To understand court packing, we need to define a few systems first.

How are judges appointed in the first place? The president nominates justices to federal courts, including the Supreme Court, and the Senate confirms them. Currently, it only requires a simple majority in the Senate for that confirmation.

Court appointments are not subject to the filibuster. This is due to the Democratic Party amending Senate rules in 2013 to make confirmation easier in the lower courts, and the GOP doing the same thing in 2017 for Supreme Court nominations.

Professor Woodward-Burns refers to this as “constitutional hardball; the practice by which partisan actors and usually members of Congress violate constitutional norms or procedural rules to entrench their party interests and power, usually in the judiciary or electorate, while operating within the rules of the constitutional text.”

What is court packing?

Professor Woodward-Burns defines court packing as “the creation of new seats, an enlargement of federal circuit courts or the Supreme Court for partisan reasons.” The number of justices we have in the Supreme Court is not in the Constitution, and the number of seats has changed over time, just as the role of the Court has changed.

Our first six justices spent much of their time riding circuit, traveling across the country in horse-drawn carriages to rule in various federal courts. This was a dangerous and exhausting task and was abolished in 1891. But the number of justices on the bench, as laid out in Article III of the Constitution, is determined by Congress. Justices were added to the Court as our nation expanded, via various judicial acts.

The most famous attempt to expand the Supreme Court took place in 1937. President Franklin Delano Roosevelt proposed adding six justices to the bench, one for each justice over the age of 70. His rationale was that due to the lifetime appointment of Supreme Court justices, there were too many older justices who refused to retire. This proposal failed to move through Congress.

How do we stop constitutional hardball?

One bipartisan solution to this retaliatory hardball in the Supreme Court would be passing legislation to place term limits on our Supreme Court justices. Such a proposal has been supported by both Republican Senator Ted Cruz and the late justice Ruth Bader Ginsburg. An argument for this is that every other democratic country in the world, as well as 49 of our 50 states, sets term limits on judges. The United States is, quite literally, unique in this aspect. 

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