It happened. Justice Amy Coney Barrett was confirmed to the Supreme Court Monday evening (NPR). Judge Barrett, who is 48 years old, is likely to serve on the court for decades, solidifying a 6-3 conservative majority. It also gives her immediate power in several upcoming hearings this November that disproportionately impacts the livelihood of communities of color. This is the first time a Supreme Court nominee has been confirmed without a single vote from a major minority party since December 1869 (WSJ). Now that it’s official, inquiries on whether or not Biden, if confirmed, could expand the court, have snowballed into comprehensive calls for action.
Expanding the size of the court, also known as “packing the court,” is when legislators move to change the number of judges confirmed to the court. This can happen at the state and federal level of the justice system – but is clearly focused on the Supreme Court. And this is constitutional: the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act signed by the President. Article III, Section 1 of the Constitution states that “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” (National Constitution Center).
And our earliest Presidents took full advantage of this. The size of the Supreme Court was changed six times from 1776 until 1869, wavering anywhere between five and ten seats (New York Times). Each time, by a President who needed to shift power to support their political goals, or to block incoming administration from shifting its stance. Read the specifics on the National Constitution Center website.
Those that feel strongly about the plan on both sides will reference the controversial plan by FDR, who aimed to expand the Supreme Court to as many as 15 judges for efficiency’s sake. But many felt that this was his attempt to garner support for his New Deal, and when voting patterns on the existing court changed, the case became a moot point (History). Regardless, it provided a cautionary tale that seems to haunt conversations about expanding the court today. How’s that for a spooky Halloween tale?
As a result, this constitutional act hasn’t been exercised on the federal level. But it’s important to note that packing – or unpacking – the court is a strategy used by both political parties on the state level. In fact, recent efforts to change the size of state courts have been led predominantly by Republicans. In 2016, the Republican legislature approved a measure to increase the size of the Arizona Supreme Court from five to seven justices, even though it wasn’t supported by Democrats or the judges themselves. A similar situation happened in Georgia, where the Republican-controlled General Assembly passed a bill to expand the court to nine justices. The bill also gave the Republican governor the power to fill the two new seats (Washington Post). Other recent efforts by both Democrats and Republicans have failed, often because of the opposition of the other party.
Some also argue that court-packing is similar to how the Republican party blocked President Barack Obama’s nomination of Judge Merrick B. Garland in 2016, which meant that the Supreme Court was acting with eight judges for over a year until the next election (NPR). Especially paired with the rush to confirm Judge Barrett before an election just four years later. Although the concept wasn’t exactly embraced by liberal political leaders, we can expect it to gain more traction with this confirmation.
But I’d like us to remember that this isn’t an issue of politics, but of people. Based on her decision on November 10, 20 million people could lose their healthcare if the Affordable Care Act is overturned – and in the midst of a pandemic, no less. This particularly impacts people with disabilities, who could easily be denied coverage and disability-related services from other healthcare providers (Progressive). A ruling on November 4 will decide whether private agencies that receive taxpayer funding for government services, such as foster care providers, can deny services to people who are LGBTQ+, Jewish, Muslim, or Mormon – and Judge Barrett is expected to vote in favor of the discrimination (Bustle). On November 9, the court will hear a case on immigration; an effort to make deportation proceedings more accurate and preserving “relief of removal”. Judge Barrett is likely to vote against immigrants (Bloomberg Law). And although there’s no date on the calendar, the anticipated overturning of Roe v. Wade would impact abortion and reproductive rights (NBC News).
All of these immediate decisions are only a glimpse of what may come from future cases. So conversations about expanding the court can’t end with this upcoming election, or this decade. Regardless of the outcome, we need to take a critical eye to our judiciary system and analyze what’s not just right historically or constitutionally, but ethically. If the government is designed to work for the life and liberty of its people, it must be realigned to suit its needs when its political leaders fail.
Judge Amy Coney Barrett was confirmed to the Supreme Court Monday night
Her confirmation ensures a 6-3 conservative majority who will be voting on critical issues for communities of color, including healthcare, immigration and discrimination
Court-packing, or expanding the court, is a constitutional act of changing the number of court justices that’s been implemented both federally and state-based