Two Truths And A Lie: Court-Packing And Judicial Independence

Since 1869, the U.S. Supreme Court has consisted of nine members (eight associate justices and one chief justice). Recently, some progressive politicians, who do not agree with certain Court rulings, have threatened to “restructure” the Court if it does not change course. Can you identify which of the following statements about Court-packing is false? 

A. Proposals by members of Congress to “restructure” the Supreme Court are a blatant political power grab.

B. Adding justices to the Court would be impractical and would overly politicize the Court. 

C. A president and Senate that act swiftly to fill judicial vacancies that arise in the normal course is also engaged in “court-packing.” 

Let’s take these statements one at a time:

A. TRUTH!  Under our constitutional system, Congress doesn’t get to tell the Court how to rule.  But attempts to intimidate the Court by proposing to “restructure” the institution are an attempt to do just that. Such “adjudication by extortion” undermines the independence of the judiciary as well as the separation of powers. 

B. TRUTH!  Packing the Court would result in a judicial arms race, where the party-in-power would seek to add justices to the Court whenever the Court rules against that party’s positions. Ultimately, this never-ending cycle of one-upmanship would turn the Court into a brazenly partisan and unwieldy organization with dozens, if not hundreds, of members.

C. LIE!  Article II of the U.S. Constitution gives the president the power to appoint federal judges and justices of the Supreme Court with the “advice and consent” of the Senate. When the president and Senate act swiftly to fill judicial vacancies that arise in the normal course, they are exercising the legitimate role of the political branches of government in the appointment process. This is not the same tampering with a co-equal branch of government for political gain. 

Bottom line:  Politicians should not meddle with the size of the Supreme Court or otherwise undermine the independence of our federal judiciary. For more information, check out IWF’s legal policy focus on Court-packing.