“The notion of ‘court packing’ by adding more than the nine Justices already on the Court, might appear to have gained momentum among Democrats as a means of avenging the confirmation of Brett Kavanaugh to the Supreme Court. But, it is likely a far fetched notion,” according to Dan Weber, president of the Association of Mature American Citizens [AMAC].
Professors of law have been touting the idea. In fact, University of Tennessee law professor Glenn Harlan Reynolds proposed the size of the court be increased to 59. In an opinion article in USA Today, he suggested the nine justices already seated on the High Court should be joined by one more from each of the 50 states.
It should be noted that the U.S. Constitution established the Supreme Court, but it did not specify a set number of justices, leaving it up to Congress to do that. The Judiciary Act of 1789 specified that there be six justices, but that number was increased to seven in 1807 and increased yet again to nine in 1837.
Thus, Congress has the power to increase the number of justices at its will. President Roosevelt tried to raise the number to 15 in 1937. However, he could not convince his Congress to go for his plan.
“Indiana University law professor Ian Samuels recently proposed getting pay-back for Kavanaugh by raising the number of justices on the Supreme Court to 15 when Democrats regain Congress and the Presidency. As Samuels put it: ‘Pack the courts should be a phrase on par with abolish ICE … a half-dozen well-qualified young progressives would make Kennedy’s replacement basically irrelevant.’ But, George Mason University Law Professor Adam White described that idea as a good way to secure President Trump’s re-election if the so-called ‘loyal opposition’ were to leak that particular notion to voters,” Weber explained.
Josh Blackman, a constitutional-law professor at the South Texas College of Law, opposed court packing in an article in The National Review, opting for the status quo. He wrote that “It is far simpler, and more productive, to garner 51 ‘nay’ votes than to radically alter how our judiciary has functioned throughout the history of our Republic.”
Weber pointed out that “improbable as it is, imagine the outrage among Democrats if the current Republican Congress were to call for an increase in the number of justices on the Supreme Court, whether it be one, two or six. After all, it would be President Trump who would be picking them over the coming two years. And, assuming the GOP can hold on to its majority in the Senate, they would most likely confirm all or most of them.”
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