What is 'Court Packing' and What Happened When FDR Tried to Expand the Supreme Court?

What’s the story?

• The Senate is considering the nomination of Judge Amy Coney Barrett to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg, and the possibility of her confirmation as the sixth Republican-appointed justice on the nation’s highest court has prompted prominent Democrats to call for expanding the Supreme Court.
• Given that the growing support for expanding the court among members of his party is in contrast with his past public statements on the issue, Democratic presidential nominee Joe Biden has avoided answering questions regarding his current support for the issue, leaving it unclear whether he has changed his mind.
• During his time as the lead Democrat on the Senate Judiciary Committee, Biden argued court packing was a “bonehead idea” that would undermine the integrity of the Court, and last year Democrats would “rue the day” they pursue it. But more recently, Biden told a reporter in Arizona last week that, “You’ll know my opinion of court packing when the election is over.” Biden dodged the question again in Nevada over the weekend, saying voters “don’t deserve to know” where he stands on court packing before they vote. He then accused Republicans of court packing by attempting to fill the Ginsburg vacancy: 

“The only court packing that’s going on right now is going on with Republicans packing the court now. It’s not constitutional what they’re doing.” 

• The Constitution tasks the Senate with considering nominations put forward by the president through the process of advice and consent, so it’s unclear what Biden believes to be unconstitutional about the ongoing confirmation process. But given the countervailing accusations of court packing, here’s a look at the history of the term and past controversies surrounding it. 

What is court packing?

• The term “court packing” originated in 1937 in response to a proposal by President Franklin D. Roosevelt that would've increased the number of Supreme Court justices after the nation’s highest Court had rejected some of his New Deal initiatives as unconstitutional. The term has come to be associated with efforts to expand the Supreme Court to add more justices friendly to the majority’s views. 
• The number of Supreme Court justices isn’t set by the Constitution and is subject to legislation approved by Congress and signed by the president, so “court packing” efforts are constitutional. 
• The size of the Court has ranged between five and 10 justices, and the number of justices changed six times before it settled at nine justices in 1869. During the Civil War, the Republican Congress expanded the Court to 10 to let Abraham Lincoln make more appointments, but after the war reduced it to eight to prevent Andrew Johnson from making appointments. 
• The number of justices was then restored to nine justices in 1869 after Ulysses Grant took office. The most serious challenge to the nine justice Supreme Court in the past 151 years came from FDR’s court packing plan in the late 1930s. 

What happened when FDR tried to pack the court?

• During his first term in office, FDR grew frustrated by the Supreme Court after it ruled against several of his New Deal initiatives in 5-4 and 6-3 decisions. After he won re-election in 1936, FDR pitched Congress on a court packing plan known as the Judicial Procedures Reform Bill of 1937.
• FDR’s plan would’ve allowed the president to appoint an additional justice to the Supreme Court, up to a maximum of six, for each justice on the Court over the age of 70 years and six months who had served at least 10 years on the bench. Despite his party holding supermajorities in both chambers of Congress, FDR faced opposition from Democrats in both chambers and drew criticism from Chief Justice Charles Evans Hughes and liberal Justice Louis Brandeis. 
• House Judiciary Committee Chairman Hatton Sumners (D-TX) was a staunch New Deal Democrat who refused to endorse the plan and halted all committee action on the plan, prompting FDR to turn to the Senate. 
• The Senate Judiciary Committee was chaired by Sen. Henry Ashurst (D-AZ), a notorious flip-flopper who defended FDR during the 1936 elections by branding a rumored court packing plan as “a prelude to tyranny”. After FDR introduced the plan in February 1937 following his victory, Ashurst said it was a “step in the right direction” that “will be enacted into law immediately”. 
• Ashurst’s committee held a hearing on the plan in March, but the chairman delayed further proceedings on the matter. In late March, April, and May of 1937, the Supreme Court issued several favorable decisions for FDR’s programs and in early June, Justice Van Devanter announced his retirement at the age of 78. These events undercut FDR’s position on court packing both in the court of public opinion and in Congress.
• When Ashurst convened the Senate Judiciary Committee to issue its report on the court packing bill in June, it dealt another serious setback to FDR’s push when the committee adversely reported the bill on a 10-8 vote, admonishing the administration for putting forward “an invasion of judicial power such as has never before been attempted in this country.” The reported concluded FDR’s court packing plan was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” 
• Momentum for FDR’s court packing plan was diminished further with the death of Senate Majority Leader Joseph Robinson (D-AR) in July, whom FDR had promised the next Supreme Court appointment and was a forceful advocate for the court packing bill. Eight days later, the Senate voted 70-22 to send the court packing bill back to committee with explicit instructions to remove language adding justices to the Supreme Court.
• While FDR lost his battle to pack the Supreme Court, he ultimately appointed eight justices when vacancies occurred from 1937 to 1943.

— Eric Revell

(Photo Credit: FDR Presidential Museum and Library via Flickr / Creative Commons | iStock.com / Oleg Albansky)