Photo via First Liberty Institute
Intensifying around the leak of the Dobbs v. Jackson Women’s Health Organization (2022) decision was the idea that the United States Supreme Court must be reformed, ignored, or dramatically altered. A variety of ideas arose regarding Court reform—term limits, age limits, or simply completely ignoring the decisions of the Court. However, for this article, I will focus on one specific reform for the U.S. Supreme Court: court packing. Due to a lack of constitutional requirements for a set number of justices on the Court, illegitimate methods of placing conservative justices on the Court, and credible allegations of sexual assault and sexual harassment against sitting justices, it is imperative that the Supreme Court be expanded.
First, a constitutional requirement for a set number of justices on the nation’s highest Court simply does not exist; thus, it would be constitutional to expand the number of justices on the Supreme Court. The U.S. Constitution only bears reference to the institution of the Supreme Court in one specific section: Article III, Section I. The description is as follows:
“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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Nowhere in the structure and responsibilities of the Supreme Court does a specific number of justices exist. In fact, Congressional legislation has shifted the number of seats on the Court; in the past, the Court consisted of five seats and then ten seats. Thus, there is undoubtedly precedent that the Court could exist with more than nine seats. Moreover, precedent for a high Court with greater than nine justices exists in other nations with structures of government similar to that of the United States. For example, Germany’s Federal Constitutional Court consists of 16 justices; the United Kingdom’s Supreme Court consists of 12. With no constitutional restrictions dictating the size of the United States Supreme Court, precedent from within the institution of more than nine justices, and precedent from similar international institutions, it is clear that the Supreme Court can and should be expanded.
Next, from the various controversies in the confirmation processes of Supreme Court Justices Neil Gorsuch and Amy Coney Barrett derives a need to place the left-leaning justices on the Court who should have been confirmed in their places. Following the death of conservative Justice Antonin Scalia, Senator Mitch McConnell and the Republican majority in Congress held the vacancy open until the following election year by denying a hearing for President Barack Obama’s appointee, Merrick Garland. With a victory by President Donald Trump, the seat was filled by conservative Justice Neil Gorsuch. McConnell’s logic was as follows:
“Of course, the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”
While McConnell’s action was not illegal, it was a stern political ploy that had serious consequences for the prestige and ideological makeup of the court. For one, instead of being replaced by a left-leaning justice, Scalia was replaced by another textualist and originalist. Secondly, the Court suffered with only eight members, delivering a consequential number of 4-4 verdicts—decisions in which the lower court’s decision stands.
Nonetheless, if one is to take Senator McConnell’s words at face value, it becomes impossible to justify the confirmation process of Justice Amy Coney Barrett. Justice Ruth Bader Ginsburg passed away 46 days prior to the 2020 election; by McConnell’s logic, the American voters decided who would serve on the then-vacant seat.
Well, not exactly. Justice Coney Barrett was nominated on September 29, 2020, and confirmed on October 26, 2020, in a process taking less than a month—an unprecedentedly short period of time. Moreover, the process overlapped with President Trump and various Republican Senators who would eventually vote on the measure contracting COVID-19. If the Supreme Court is to truly be an apolitical and independent institution served to check the power of the other branches of government, Mitch McConnell and Senate Republicans’ blatant polarization of the judiciary must be redressed by adding the justices who deserved to be on the Court in the first place.
Lastly, two sitting Supreme Court justices have had credible accusations of sexual assault leveled against them, yet they remain on the Court. If it is unlikely that these justices are to be impeached and removed from the court, there need to be justices added to the Court to dilute the influence of these alleged offenders. In the confirmation hearings for Justice Clarence Thomas, a young attorney named Anita Hill leveled accusations of rampant sexual harassment. Hill detailed how Thomas would frequently ask her out and refuse to take no for an answer; additionally, Hill noted how Thomas would speak openly about sex and pornography while at the workplace. Unsurprisingly, Justice Thomas denied the allegations, yet it was Hill who passed a polygraph test to confirm her statements. Importantly, Thomas is not the only justice on the Court who has credible accusations of sexual assault leveled against him. In the widely televised confirmation hearings of Justice Kavanaugh, Dr. Christine Blasey Ford outlined Kavanaugh’s sexual assault of her when both were teenagers. The alleged actions of Justice Kavanaugh were vile and grotesque: Dr. Ford recalled the justice nearly raping her and “pushing down so tightly [on her neck] she couldn’t breathe;” all the while he was laughing. Like Anita Hill, Dr. Ford reinforced her claims with a polygraph test.
Of course, the best-case scenario would be the impeachment and removal of Justices Thomas and Kavanaugh from the bench. However, given the indecisiveness of the Democratic Party and lack of serious precedent for Supreme Court impeachments, it is more practical to pack the Court to dilute the influence of these likely criminals.
In conclusion, due to the lack of a constitutional requirement for the number of Supreme Court seats, credible allegations of sexual assault and harassment against presiding justices, and controversies in the confirmation processes of certain justices, there exists a clear need to reform the Court by adding justices to the bench. Although packing the Court may have a negative connotation, it would help reign in a dangerous, rogue Supreme Court that has delivered a flurry of opinions out of line with what the American public believes. With the growth of right-wing election denial and domestic threats to democracy, it is now more than even important to have a Supreme Court of balanced ideology that will seek to uphold and protect key American values. Instead, the Supreme Court of the present day has concerned itself with stripping down reproductive rights, upholding racially discriminatory Congressional maps, and eliminating solutions to gun violence. It is time to pack the Court.