MCN/USA TODAY Network: Court packing or court persuasion

Matthew T. Mangino
MCN/USA TODAY Network
April 16, 2021

Recently President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.  The President characterized it as a bipartisan group of experts on Court reform.

A White House press release suggested the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform… including the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The phrase that got everyone’s attention was the “size of the court.”  It is no secret that Democrats want to pack the Supreme Court.  The term “packing” comes from the late 1930s, when President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age.

The Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

According to History.com, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on his New Deal legislation.

Roosevelt’s court packing plan failed. According to Reuters, the Supreme court has nine justices and that has not changed since 1869.

As with Roosevelt, President Biden faces a similarly unsympathetic Court.  With Justice Amy Coney Barrett’s rushed confirmation only weeks before the election the Court has a decidedly right-leaning bent with six conservatives and three progressives.

Democrats in the House of Representatives and Senate have proposed legislation to expand the court.  The sponsors of the bill suggest in a press release, “Nine justices may have made sense in the 19th century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white-collar crime—simply did not exist and did not require adjudication by the Supreme Court … having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

For his part, President Biden has previously indicated that he is leery of expanding the court. Justice Stephen G. Breyer, one of the three progressive judges on the court, said this week that packing the court would make the court appear political and erode public confidence.

Speaking recently as Harvard Law School, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

Most Americans are against court packing, the Senate is split 50/50 and Joe Biden is skeptical—so why create a commission to study expanding the court?

A closer look at Roosevelt’s court packing plan may provide some insight.  FDR’s plan to add more justices never came to fruition, but according to The Hill, the court packing plan succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry.

The Court, following Roosevelt’s “failed” court packing plan, began to act more favorably with regard regulation, public works programs and other Roosevelt initiatives. As the high Court lessened the pressure on FDR the country began to lift itself from the woes of economic decline.

Could President Biden be sending a message to the Court?  Chief Justice John Roberts has not shied away from voting with his progressive colleagues and he has been an ardent supporter of the Court’s reputation.  Perhaps the President’s maneuvering on court reform is a shot across the bow to get the Court’s attention.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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