They aren't increasing the number of judges for political purposes. We've been at 9 judges since 1869. Why would we need more? Even Ginsburg said 9 is the correct number.
The term “court packing” was coined by opponents of a judicial reform bill proposed in 1937 by Franklin Roosevelt.
In fact, the Court has gone down as many times as it has gone up. From 1863 to 1866, there were actually
10 Supreme Court justices. Then Congress trimmed that all the way back to 7 with the goal of eliminating justices from Southern states. Then just three years after that, Congress stepped in again to raise it to the current level of 9 justices, following a restructuring of federal courts.
So what could Biden do? Honestly, just about anything. The Constitution calls for a court, but has nothing to say about how many people sit on that Court. But here are a couple of options that should appeal to Republicans that demand “original intent.”
WHY GEORGE WASHINGTON WOULD WANT 26 JUSTICES
The original understanding of how to structure the court was that there should be two justices for each federal circuit court. There were three such circuits in 1789, which is how the United States ended up with six justices. Since there are thirteen such circuits today, we should have … 26 justices. Isn’t that right, Amy Coney Barrett?
THE CASE FOR 16 JUSTICES
That idea of two justices per circuit didn’t stick around long because legislators in the original 13 states were reluctant to share the judicial branch with those upstarts in new states. When a new circuit court was added in 1807 to cover Kentucky, Ohio, and Tennessee, just one new seat was added to cover them. If that’s the precedent, then there should be 16 justices—six for the original three circuits, and one each for all those added later.
OR WHY NOT JUST … LOP OFF GORSUCH, KAVANAUGH, AND BARRETT
Forget packing the court. A real originalist might argue that the proper number of Supreme Court justices is right where it started, with just six seats. When the Court was cut from six to five in 1801, Jefferson-haters didn’t actually try to boot a justice. They were more concerned that they block Jefferson from getting a chance to name anyone new.
But that law in 1869 did something else besides. It also provided that justices can have a pension when they leave the court, something that had previously been lacking. That change pointed out a simple remedy for removing justices without violating the constitutional limits on pay—keep paying them. Cutting Gorsuch, Kavanaugh, and Barrett a check each year would be a small price to pay for having their voices removed from the bench. And just think of all the beer.
BUT WHAT SHOULD BIDEN REALLY SAY?
If Amy Coney Barrett can insist she can’t even speak to existing laws, or confirm items that are in the Constitution, then there’s no reason Joe Biden has to say anything. But assuming that he does, the answer is: As little as possible.
Biden can point out that the court has already been packed by Republicans who have seated 15 justices in the last 50 years, a period in which Democrats have only named four.
If that had all occurred as a coincidence of when Justices happened to die, it would be one thing.
It hasn’t.
Not only has there been deliberate manipulation of openings by a Republican Senate that refused to give a hearing to a nominee from a Democratic president, there also has been more than one occasion of direct coordination between the Republicans on the court and sitting justices, as happened when Justice Kennedy negotiated his own retirement to give Trump an additional slot.
The idea that the court is, or ever was, apolitical, is … pure malarkey.
And Biden should not have it.
Biden says he’s not a fan of adding more seats to the court, but he should admit that it could be the only possible solution to a court that has been manipulated by Republicans over decades to make it hugely unrepresentative of either the nation, or of legal scholarship. He might also mention that with Trump and McConnell colluding to pack other federal courts with
hundreds of unqualified appointees, having a fair and unskewed court is a necessary buffer against genuinely horrible legal rulings.
Biden might also mention other options, such as limiting the term of justices, or even having justices selected form a rotating pool of justices at the circuit court level. But above all he should make it clear that he’s not “breaking” some sacred trust concerning the court. That trust has never existed, and the efforts of Republicans over the past half century have made the Supreme Court even less representative than the lopsided Senate and Electoral College.
Let the pearl clutchers clutch. This needs to be fixed.
