All Eyes on Georgia: Court-Packing and a Different “Switch in Time”

Unbeknownst to many American citizens, the Constitution does not stipulate a requirement for the number of justices that serve on the United States Supreme Court. Whereas Article III of the Constitution explicitly vests judicial power in the body of a Supreme Court, and Article II endows the President of the United States with the power to appoint judges to that Supreme Court, there exists no provision within the document for the exact number of justices that shall serve on the court at any given time. In other words, the Constitution of the United States does not expressly state how many justices should sit on the Supreme Court, nor does it state who should have the power to decide that number. 

After signing into law the Judiciary Act of 1789, President George Washington nominated only six justices to the high court; under President Lincoln, the number grew to ten. Thereafter, the total number of justices changed six different times before Congress settled at the present total of nine with the passage of the Judiciary Act of 1869. Though it was significant in establishing a distinct numerical foundation for the Supreme Court, the irresolute nature of this 1869 legislation ultimately served to leave the court bench vulnerable to future efforts at reform.  Because there was no constitutional amendment made in accordance with the Judiciary Act of 1869, the nine-justice-stipulation was left susceptible to the revisionary efforts of both the legislative and executive branches. Strikingly, President Franklin Delano Roosevelt’s attempt to “pack” the Supreme Court in 1937 is often regarded as the most infamous of these efforts. 

On February 5, 1937, amid the deepest economic crisis to which the nation had yet borne witness, President Roosevelt asked Congress to empower him with the authority to appoint an additional justice to the Supreme Court for each member of the court who was over the age of seventy years old and did not retire. If granted, this request of Congress would have enabled President Roosevelt to expand the bench by six additional justices. Although Roosevelt maintained the argument that the additional justices were necessary for increased efficiency and vitality in clearing the court’s backlogged dockets, both Democrats and Republicans in Congress heralded the initiative as a presidential “power grab” of sorts. 

President Roosevelt maintained that the crisis of the Great Depression could be solved through his New Deal reforms, including his plans to increase the federal role in the economy through providing citizens with jobs, the creation of new federal agencies, and the imposition of greater regulations in the various economic sectors of the nation. Further, the Roosevelt Administration argued that this New Deal legislation derived its authority directly from the text of the Commerce Clause. Yet, the Supreme Court proceeded to demonstrate how they disagreed with this sentiment, striking down key New Deal legislation in a series of divisive court decisions.

Thereafter, Roosevelt, impassioned by the crisis facing individual American welfare amid the Great Depression, threatened to appoint additional justices to the Supreme Court until the existing justices’ votes were diluted. 

As a result of the Court’s landmark decision in West Coast Hotel v. Parrish (1937), a case regarding the constitutionality of a Washington state minimum wage law, this threat would never reach fruition. In what has famously been proclaimed as the “Switch In Time That Saved Nine” — Justice Owen Roberts, the critical swing vote on the deeply divided, partisan court in West Coast Hotel v. Parrish shifted his vote away from the court’s conservative bloc of justices towards one which sought to uphold President Roosevelt’s pivotal New Deal legislation. Significantly, this “switch in time” served the important role of signaling the “end of opposition to the Court’s willingness to strike down New Deal legislation at the federal level because of a perceived lack of congressional power.” Moreover, it had the implicit effect of stigmatizing future attempts at court-packing by the executive and legislative branches.  

So, why was the number of justices on the Supreme Court called into question again in 2020?

In the wake of liberal Justice Ruth Bader Ginsburg’s death and the subsequent confirmation of her conservative successor, Amy Coney Barrett, a court-packing discussion resurged amongst Democrats and Republicans alike. 

Democratic leaders, such as Senator Elizabeth Warren of Massachusetts, argued that present efforts at court expansion should be regarded as a defensive move against the politicization of the Supreme Court, rather than a “unilateral power grab” by Democrats. Even more moderate Democratic leaders including our current President, Joe Biden, adopted this perspective as well, as the balance of the court shifted to a 6-3 conservative majority in late October. 

Prior to the 2020 presidential election, Biden vehemently opposed and denounced the idea of court expansion, claiming in 2019 that the American people would “live to rue [the] day” in which the court could legally expand beyond nine justices. Yet, when asked again about court-packing after the loss of Justice Ruth Bader Ginsburg, Biden instead maintained that, “if elected, he would convene a national commission to study the court system.” The necessity for this commission, according to Biden, is the reform of the court system, which he colloquially deemed to be “‘out of whack.’”

The plausibility of Biden’s intended plan for court reform and its vague allusion to the possibility of a court-packing initiative is questionable. As was demonstrated by the backlash President Roosevelt faced in response to his efforts to pack the court during the Great Depression, the appointment of additional justices to the court is a contentious policy issue. Without a clear Democratic majority in both Houses of Congress, it is evident that President Biden will face major policy opposition and stagnation while in office. 

So what does this mean for the Court? Will there be another “Switch in Time?

The answer to this question is heavily dependent upon the results of the two runoff Senate races that took place in Georgia on January 5, 2021. Under Georgia’s election laws, a Senate candidate must obtain 50% of the vote in order to avoid a runoff election. On November 3rd, 2020 neither David Perdue nor Kelly Loeffler, the state’s Republican incumbents, reached this cut-off, leaving all eyes on Georgia for the fate of the Senate. 

On January 19, 2021, the eve of President Joe Biden’s inauguration, Georgia’s secretary of state sealed this fate, certifying the results of the runoff elections in favor of the Democratic challengers, Jon Ossoff  and Reverend Raphael Warnock. Markedly, this joint-Democratic victory could provide the Biden administration with the support required for its policy proposals on issues pertaining to health care, the environment, and even the future configuration of the Supreme Court. 

More than eighty years after FDR’s infamous attempt to change the composition of the Supreme Court to pass key New Deal legislation, could this “switch in time,” a switch in the Senate representation of a historically red state, achieve the court-packing initiative Justice Owen Roberts prevented in the 1930s? 

It seems unlikely. 

FDR’s plan to pack the courts experienced heavy levels of resistance from Congress despite united Democratic control in the executive and legislative branches. Today, a narrowly divided Senate, even with Democrats in control, will necessitate that President Joe Biden garner significant cross-party cooperation in order to propel many of his legislative priorities forward. Attaining this level of cooperation, an already arduous task in the polarized arena of U.S. politics, will become further complicated by the Senate’s new composition. The 50-50 Senate will endow each senator with an inordinate amount of legislative power, ensuring that Democatic initiatives, including those of the President, cannot afford to lose a single vote. Given this, and the historically contentious debate that surrounds the mere concept of “court-packing,” the notion that a Biden-court-packing-initiative could amass success under the newly elected Senate seems highly implausible. 

Plausibility aside, the undertaking of a court-packing plan by the Biden Administration, or any future Democratic or Republican administration for that matter, could create serious ramifications for the functions and legitimacy of the Supreme Court. Such a policy could set a dangerous precedent in the American two-party system; one in which, every four years, the President of the United States could expand or contract the court to best suit their party’s needs. 

Though some may argue differently, it is not apparent this action would make the body of the Supreme Court any more efficient or representative of the American electorate.

Hannah Ponce is a junior concentrating in Public Policy and Ethnic Studies. She is a Staff Writer for the Law Review’s Blog and can be reached at hannah_ponce@brown.edu. 

References

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Kelly, Caroline. “Georgians Have until December 7 to Register to Vote in Senate Runoff and Other Key Dates.” CNN, Cable News Network, 9 Nov. 2020, www.cnn.com/2020/11/09/politics/georgia-runoff-key-dates/index.html.

Nadler, Ben. “Georgia certifies Democrats Warnock and Ossoff’s Senate wins.” AP News, The Associated Press, 19 Jan. 2021, https://apnews.com/article/biden-inauguration-joe-biden-donald-trump-capitol-siege-senate-elections-20efd481a808f09ec8eabbeb148347fe 

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