Pro: Madeleine Ott ‘22
Congress should act on behalf of the interests of the American people to expand the Supreme Court in order to restore the ideological balance and thus the legitimacy of the judiciary. Following the death of beloved icon Ruth Bader Ginsburg and the subsequent appointment and confirmation of Amy Coney Barett, conservatives now hold a seemingly unbreakable 6-3 majority in the Supreme Court, a majority which was created because of Republican hypocrisy. In 2016 Republicans blocked President Obama from appointing liberal justice Merick Garland to the court because it was a presidential election year, but they just recently confirmed Donald Trump’s conservarive pick days before an election which Joe Biden has now won. Democrats therefore feel that they have been robbed of a supreme court seat and in response, many are calling for Congress to increase the number of justices that serve on the bench.
Though opponents of court packing frame it as an illegitimate power grab, this course of action should be seriously considered, given the highly polarized state of the Court. Court packing generally carries a nefarious, immoral connotation, one that does not accurately reflect the history of judicial reform or the role of Congress. “The terminology of calling it ‘court packing’ is inherently negative. Part of taking control of the narrative is saying ‘expanding the court,’ which is a more accurate description,” says Anika Agarwal ‘23. Court expansion, or judicial reconstruction in general, is by no means a novel idea; a Time Magazine opinion piece titled “Beyond Court Packing: The Supreme Court Has Always Been Political” states that the size of the Supreme Court has been altered seven times in our country’s history. Moreover, the power to make such adjustments is specifically delegated to Congress in Article III, Section 1 of the Constitution, which reads, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
In regard to the current Supreme Court, an overwhelming majority of justices with similar ideological beliefs could potentially undermine the rule of law and the American people. “Congress should consider reforming the judiciary in a way that makes it most likely that the will and the needs of the people will be met in the judiciary, and not thwarted by the judiciary. Right now, there are several issues where the judiciary at the Supreme Court level is issuing many opinions that are out of step with the will and the needs of the people.” says Kahlil Oldham, World History and Honors Identity and Culture teacher.
For example, a 2019 survey by Pew Research Center found that seven in ten Americans support upholding the Supreme Court decision Roe v. Wade. With a newly minted 6-3 conservative majority, it is entirely possible that the current Supreme Court could re-examine this decision and even rule to overturn it. In addition to reproductive rights, other issues subject to potential reversal by the Supreme Court include voting rights, gun control, campaign finance, gerrymandering, and marriage equality. “The majority of the American people are on one side of these issues, and if we have a judiciary that’s constantly overturning these [rulings], as they have been over the last fifteen years or so, then I think Congress should take that seriously,” says Oldham.
It is no mistake that the framers of the Constitution gave Congress the ability to reform the Supreme Court; it was a carefully crafted check on the power of the judiciary. As the branch of government most representative of the American people, Congress has a duty to intervene when their interests are compromised, even at the hands of another branch of government. The current Supreme Court has the ability to become a tyranny of the minority, stifling the majority of Americans’ voices concerning contentious issues and personal rights. We must expand the Court before irreversible damage is done.
Con: Erica Feehery ‘21
Overturning precedent to alter the structure of the Supreme Court is not a practical solution to this partisan problem as it will create politicization for a branch of government that is meant to be apolitical. Following Democratic frustration with the confirmation of three Supreme Court justices during Donald Trump’s time in office, the issue of court packing to supplement Trump’s rather conservative justices has been a topic of discussion among members of Congress, presidential candidates, and even everyday people. Logistically, Article 2 Section 2 Clause 2 of the Constitution does not specify a structure for the court, so the number of justices which serve on it can be changed with the passing of a new law. For court packing to realistically happen, the Democrats would have to take control of both houses and the presidency in this election.
The discussion to pack or reform the Supreme Court assumes that there is a problem with the current court–but is there? The court’s role is to read the law and interpret it, not to establish new policies. The court was designed as apolitical and not necessarily representative of the ideological views of the American people, which is why justices serve for life. Therefore even if 70% of Americans support Roe v. Wade and a more conservative court may threaten it, that is not a reason why the court should not be packed. David Mercante, AP U.S. Government and Politics teacher, explains “the thinking is that the less political it is, the more likely you are to get the correct, just decision versus one that might just be popular.” Increasing the court’s dependence on the other two branches of government also undermines the separation of powers, as enumerated by James Madison in Federalist #51, “the members of each department should be as little dependent as possible on those of the others.” The court is ideally focused on explicitly what the law says, rather than each judge attempting to advance their own political biases. Adam Oliva ‘21 agrees stating, “with court packing, you start to lose the individuality of the court and it becomes more like the Senate and the House. The court becomes a politicized body, which is the antithesis of what it is supposed to be.”
Packing the court or other proposed court reforms will not reduce the politicization of the court but will drastically increase it in future years, because once the precedent is broken, nothing will restrain either party from upending the entire system when they control the presidency and Congress. The Democrats control the executive branch after the 2020 election and may control the legislature depending on the results of senate run-off elections this January, but it is important to note that the Republicans had a unified government as recently as 2016, and it could easily flip back and forth.
Altering the Supreme Court in such a fundamental way will incite a cycle of politicization and polarization that will both undermine the purpose of the court and is unnecessary. We need to maintain the court and government system that has worked for hundreds of years and bring any policy concerns to the legislative branch.