What is Court Packing, and why are Democrats Considering It?

On October 26 this year, Amy Coney Barrett was confirmed by the United States Senate to become an Associate Justice of the Supreme Court. In response to this confirmation and the election of Joe Biden to the presidency, some Democrats have been calling for President-Elect Joe Biden to “pack the court.” But what does this mean?

Court packing is increasing the number of judges on a court in order to get a majority of judges that have a particular ideology. Right now, there are six Republican and three Democratic justices on the Supreme Court. In order to get a majority of Democratic justices, Democrats would need to “pack” four more seats onto the court, leaving the Supreme Court with thirteen justices. Since the Constitution doesn’t specify how many justices sit on the Supreme Court, it is up to Congress to determine that number with a simple majority vote of the United States Congress, which is 218 house members and 51 senators (or 50 senators and the Vice President).

Although President-elect Joe Biden has opposed court packing in the past, he has not reiterated his position and has successfully dodged questions on the matter. During a 60 Minutes interview in October, Joe Biden said he would create a bipartisan commission focused on reforming the courts. “I will ask them to, over 180 days, come back to me with recommendations on how to reform the court system, because it’s getting out of whack,” Biden said.

With the possibility of court packing, many Americans are left wondering “why?” Why do the Republican and Democratic parties want a majority of justices on the Supreme Court? Aren’t justices suppose to be impartial and unbiased no matter what? The Constitution is a very broad and unspecific document, so even though justices attempt to remain impartial, they have different philosophies on how the Constitution should be interpreted.

The two mainstream ideologies on the way that the Constitution should be interpreted are originalism and as a living document. The philosophy of a living Constitution is a more liberal and progressive ideology, generally favored by Democrats. It is the belief that the Constitution changes from time to time in order to account for social progression.

Originalism, on the other hand, is a more conservative ideology, favored by those of the Republican party. Originalism is the belief that the Constitution should be interpreted as it was intended to be interpreted by the Founding Fathers, and that the only way to change the Constitution (such as to keep up with social normalcy) is to amend it. Living constitutionalists argue that an originalist view of the Constitution does not account for social implications and may result in something horrible that the founding fathers did not account for or anticipate at the time. “Suppose originalism does lead to a result that you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things,” wrote Associate Justice Neil Gorsuch in an article for Time Magazine.

Although the Supreme Court now has 6 Republicans and only 3 Democrats, there is still a slight chance for those in favor with Democrat-leaning ideologies and constitutional interpretations without having to pack the court. Associate Justice Brett Kavanaugh and Chief Justice John Roberts, both nominated by Republican presidents, could potentially be swing votes for the Democrats. With both of their votes swinging over to Democrats in Supreme Court rulings, the majority would be in the favor of the Democrats. Chief Justice Roberts has made left-leaning votes and decisions recently, such as the decision to strike down a Louisiana law that restricted abortion rights back in June.