Pack the Court
The Supreme Court’s far-right ideology has discredited it in the eyes of the American people. Some think court packing is one way to make the nation’s highest justices make better decisions.
J. Patrick Patterson
court pack•ing
noun
1. a plan to reform the Supreme Court by adding more justices
But why?
It’s safe to say many Americans would rather be alone in the woods with a bear than with SCOTUS right now. The court has lost a lot of legitimacy after a string of unpopular rulings, from stripping away abortion rights to making it easier to criminalize unhoused folks, and it holds a pitiable 44% approval rating. Adding justices is one way to rebalance.
How many more robes are we talking?
Theoretically, the sky’s the limit! The Constitution enshrines the court’s existence, but the number of judges can be changed with an act of Congress. Congressional Democrats, led by Sen. Ed Markey (D-Mass.), have proposed the Judiciary Act to expand the Court from nine to 13. The Nation’s justice correspondent Elie Mystal argues for a more radical 20 additional justices, which would necessitate 15 votes (rather than four) to overturn a decision. Other possibilities abound.
OK. Pack the court — or send the justices packing?
While there’s certainly an argument to abolish the Supreme Court as anti-democratic, there’s more political momentum behind court packing. Adding new justices could make SCOTUS more diverse and less partisan — leading to less radical rights-stripping. Opponents think it’s a slippery slope that would jeopardize judicial independence and allow a president to shape the court’s ideological makeup — although some would say this ship has sailed. FDR, for example, famously tried to pack the court to protect his New Deal policies.
Any chance it’ll happen?
Markey reintroduced the Judiciary Act in 2023, which was referred to committee. The current Congress could attempt to expand the court during President Joe Biden’s lame-duck period, but this seems unlikely; Biden has proposed court reforms, such as term limits and a binding code of conduct, but court packing didn’t make his list. And with the return of Donald Trump and Republican control of the Senate, the answer is: It’s unlikely to happen soon. Otherwise, reform advocates can still push for other changes to curtail the court’s far-right dictatorial authority.
This is part of “The Big Idea,” a series offering brief introductions to progressive theories, policies, tools and strategies that can help us envision a world beyond capitalism.
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J. Patrick Patterson is the Associate Editor at In These Times. He has previously worked as a politics editor, copy editor, fact-checker and reporter. His writing on economic policies and electoral politics has been published in numerous outlets.
