What Exactly is Supreme Court Packing?

Supreme Court

The Supreme Court is powerful. As a result, there is enormous interest in controlling it. Supreme Court packing means gaining control over the Supreme Court by increasing the number of Supreme Court justices. It is the most popular of the methods that have been talked-about. Primarily, this is because it is much more realistic than removing a Supreme Court justice, though even then, chances are good that it isn’t happening.

Why Have Democrats Been Talking About Supreme Court Packing?

To understand why the Democrats have been talking about Supreme Court packing, interested individuals need to remember a couple of incidents. First, Antonin Scalia died in February of 2016. His replacement was seen as being very important by both Democrats and Republicans. This is because Scalia meant that there had been a 5-4 conservative majority on the Supreme Court. With Scalia’s death, this meant that the 5-4 conservative majority could be replaced by a 5-4 liberal majority. Barack Obama proceeded to nominate Merrick Garland. After which, Mitch McConnell refused to let the Senate vote on the nomination, claiming that it should be the next Supreme Court justice should be the next president’s choice. The Republicans pointed out that the Democrats had mused about a similar course of action back in 1992. Nonetheless, this infuriated Democrats because this was unprecedented.

Second, Ruth Bader Ginsburg died in September of 2020. By McConnell’s own precedent, this meant that the next Supreme Court justice should have been the next president’s choice. However, the Republicans went ahead with putting Amy Coney Barrett in Ginsburg’s position anyway. This infuriated Democrats for a number of reasons. One, there was the hypocrisy. Two, there was the outrage that a famous advocate for gender equality would be replaced by someone perceived to be threatening to it. Three, this meant that the 5-4 conservative majority would be expanded to a 6-3 conservative majority. From the Democrats’ perspective, the previous situation had been bad but bearable because conservative Supreme Court justices have been known to side with their liberal colleagues from time to time. Now, there was a much greater risk that major legislation would be killed in the Supreme Court.

People might have heard of the prisoner’s dilemma. For those who are unfamiliar, it is a scenario in which two people can choose to either work with one another or turn on one another. If both of them work together, both of them benefit; if both of them turn on each other, both of them suffer. However, if one person turns on the other while the other does not, said individual gains an even greater benefit while the other suffers an even greater loss. Of course, this kind of thing has a huge effect on subsequent rounds of the same game because a person will be much more cautious about cooperating once they have been betrayed in this manner. The more that this kind of thing happens, the truer this becomes. In other words, Supreme Court packing is something that some Democrats would like to implement in retaliation for McConnell’s shenanigans. The chances of it happening aren’t very good for a number of reasons. It is likelier to be used as a threat more than anything else, though even that isn’t looking very likely.

What Would Be the Consequences of Supreme Court Packing?

Besides Supreme Court packing, the other solution that has been talked about a lot would be removing Supreme Court justices. Theoretically speaking, that is a thing that can happen. In practice, it won’t happen for a number of reasons. For example, it isn’t 100 percent unprecedented but it might as well as be, seeing as how there was one Supreme Court justice who was impeached but not removed back in 1803. Similarly, the Democrats would need to do this at least twice in order to gain control of the Supreme Court, which for obvious reasons, is much more difficult than doing it once. On top of this, removing a Supreme Court justice requires a two-thirds majority in the Senate.

Supreme Court packing is somewhat more realistic but not much more so. For starters, the number of Supreme Court justices was changed a number of times in the 19th century. As a result, Supreme Court packing has precedent, particularly since some of those changes were very much meant to secure control of the Supreme Court rather than some other purpose. Furthermore, changing the number of Supreme Court justices requires nothing but a simple majority in both the House and the Senate. Something that is much easier to secure than the two-thirds majority in the Senate. Having said that, there are a couple of major issues that prevent the use of Supreme Court packing. First, both sides can use Supreme Court packing. If one sides uses it, there is a very good chance that the other side will retaliate by using it as well. As a result, it is a short-term solution rather than a long-term solution. Furthermore, it would be extremely damaging to the legitimacy of the Supreme Court, which is a serious issue when it is supposed to be the head of one of the three branches that make up government. People often take the stability of their government for granted. However, that is unwise because a destablized government can mean very bad things for everyone very fast. Second, Supreme Court packing would be extremely damaging from a reputational perspective. This wouldn’t just be true for whoever uses it, this would be true for the United States as a whole. After all, Supreme Court packing is the kind of thing that people expect from would-be authoritarians as well as democracies in danger. Whatever the justifications for it, such a course of action would be extremely damaging for the United States’s image in the world, which in turn, means that it would be extremely damaging for the United States’s standing in the world. Suffice to say that wouldn’t be a good thing for either U.S. politicians or anyone else in the United States.

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