Tom Ginsburg Says "Don't Pack the Court"

Don't Pack the Court

Last week, congressional Democrats­ introduced a new Judiciary Act that would pack the Supreme Court, expanding the number of justices from nine to 13. The proposal is simplistic, doomed, and likely to exacerbate our problem with the courts—even as more practical proposals are disregarded.

Start with simplistic. The entire bill is less than 100 words and does precisely one thing: It gives Democrats an opportunity to make four new appointments to the Supreme Court. Though it is called the Judiciary Act, it does not purport to address issues of federal jurisdiction, the size of appeals courts, or any of the technical matters that are traditionally the subject of such bills. Instead, it recalls President Franklin Delano Roosevelt’s failed proposal in 1937 to pack the courts to secure the New Deal. That proposal was rejected by Democrats as a threat to liberal democracy, and for good reason: If one party moves to pack the courts when it holds the Senate and presidency, the other side will likely do the same when the tables turn, and the courts will be viewed, even more than they already are, as just another partisan branch.

Perhaps for this reason, the speaker of the House, Nancy Pelosi, has signaled that the bill will be dead on arrival in the House, and so the bill is political theater. Representative Jerrold Nadler, one of the bill’s sponsors, has suggested that the motive is simply to ensure that there is one justice for each of the judicial circuits, which was a norm in the 19th century. That justification is fooling no one, for if that were the only motive, he could have proposed the bill last year when the Republicans controlled the Senate. This is a clear appeal to partisanship.

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