The idea started to gain more support in Democratic circles after Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow a vote on President Barack Obama’s Supreme Court nominee after the death of Antonin Scalia. McConnell argued it was just too close to the election for such a major move. Donald Trump won, and Democrats felt cheated out of a court seat.
But talk of trying to pack the court has been revived now that McConnell is rushing through Amy Coney Barrett, Trump’s nominee to replace liberal icon Ruth Bader Ginsburg ― even though it is even closer to the election than it was when Obama nominated Merrick Garland in 2016.
“[Y]our party is actually openly advocating adding seats to the Supreme Court, which has had nine seats for 150 years, if you don’t get your way. This is a classic case of if you can’t win by the rules, you’re going to change the rules,” Vice President Mike Pence said to Sen. Kamala Harris (Calif.) at the vice presidential debate on Wednesday.
Democratic presidential nominee Joe Biden has refused to take a firm stance on court-packing, saying people will “know my opinion on court-packing when the election is over.”
Pence shouldn’t act so outraged. His party has been trying to change the size of courts at both the state and federal levels for years.
There have been at least 20 bills to increase, or decrease, the size of supreme courts in 11 states over the past decade, according to a new study by Duke University law professor Marin K. Levy. The vast majority of them have been by Republicans, and attempts have been on the rise compared to decades past.
Legislatures in Arizona, Georgia, Florida, Iowa, South Carolina and Louisiana have all tried to add justices, while Montana, Oklahoma, Washington, Alabama and Pennsylvania have tried to remove some. Republicans drove the changes in all those states over the past decade, aside from Democratic bills in Louisiana and Alabama. (The instances in Pennsylvania and Alabama were less clear in whether the motivations were partisan though.)
“The most discernible pattern is also the one that should be the least surprising: it appears that various elected officials pushed for changes to their state supreme court when doing so was in their political interest,” Levy wrote.
Two of those attempts, in Arizona and Georgia, were successful. In both cases, the GOP controlled the legislature and the GOP governor had significant power to appoint the judges he wanted to the court.
In many of the instances examined by Levy, the partisan motivations for changing the size of the court were stated quite plainly.
In 2011, Republicans controlled the Montana state legislature while a Democrat was governor. Lawmakers tried to “unpack” the state supreme court by reducing the number of justices from seven to five ― removing the seats held by two of the most liberal members.
The GOP sponsor of the unpacking bill outright said that his aim was to make it harder for victims to sue for damages.
“So how do we get to tort reform? I would suggest that if we took the Supreme Court from 7 to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court,” said then-state Rep. Derek Skees.
In other instances, changing the size of the state’s highest court came after a decision that the party in control of the legislature didn’t like. In 2009, the Iowa Supreme Court struck down a state law banning same-sex marriage. In response, a Republican lawmaker introduced a bill to increase the number of justices. (It ended up going nowhere because Democrats controlled the legislature and governorship.)
Levy told HuffPost that Republicans have had more opportunities to engage in court-packing and unpacking than Democrats have.
“During the time period I examine — the last decade — there were more Republican-controlled state legislatures in all years but one (2010),” she said. “And in most years, there were two or three times as many states with Republican-controlled state legislatures than Democrat-controlled ones.”
But, she added, “there is compelling evidence that Republicans have played constitutional hardball more frequently and with a greater intensity than Democrats at the federal level. It is possible that we are witnessing similar dynamics at the state level as well.”
In 2017, then-Sen. Jeff Flake (Ariz.) ― who was seen as a moderate Republican ― tried to break up the 9th U.S. Circuit Court of Appeals, which is traditionally liberal. He argued that its caseload had become too big, even though the 9th circuit’s chief judge said the size of the court had nothing to do with productivity.
“These efforts have nothing to do with caseload,” Sen. Dianne Feinstein (D-Calif.) said in a statement at the time. “In fact, splitting the 9th Circuit would be a huge waste of taxpayer dollars. The simple fact is that calls by President Trump and Senate Republicans to split the 9th Circuit are simply a political response to decisions they don’t like.”
And in 2013, Sen. Charles Grassley (R-Iowa) tried to strip the D.C. Circuit Court of Appeals ― considered the second-most powerful court in the country ― of three of its seats, preventing Obama from filling the vacancies. Grassley argued that the court wasn’t busy enough to justify having 11 judges. Republicans, however, pushed to fill every vacancy on the court during President George W. Bush’s administration when the court’s caseload was even lower.
Nothing in the constitution mandates nine justices on the Supreme Court. The Judiciary Act of 1789 originally set the number of justices at six. President Franklin Delano Roosevelt was famous for trying to pack the court, but it’s been done for partisan purposes at other points as well. In 1863, Congress actually expanded the Supreme Court to 10, which was ― according to Levy ― “a move understood to allow President Abraham Lincoln to shift the Court favorably toward the Republican agenda at the time.”