Court Packing Isn't a New Prospect. Is This Time Any Different?

A group of Democratic lawmakers led by Representative Jerry Nadler of New York and Senator Ed Markey of Massachusetts introduced a plan to expand the number of the justices on the U.S. Supreme Court last week.

The Judiciary Act of 2021 would increase the Court's members from nine to 13 and comes at a time when many Democrats feel aggrieved by Republican behavior toward the Court, including refusing to hold a confirmation hearing for former President Barack Obama's nominee Merrick Garland in 2016.

The idea of expanding the Court—often referred to as court packing—is not a new one. The last major proposal came from President Franklin D. Roosevelt in 1937. It was ultimately not carried through but the current effort has brought it back into the spotlight. Many are wondering if 2021 will prove different to 1937.

Gregory Caldeira is professor of law at the Ohio State University and specializes in the Supreme Court. He told Newsweek the plan was unlikely to succeed.

"Efforts to expand the Court will not succeed, at least in the short term and not unless the court were to strike down actions of laws that are at the heart of the [President Joe] Biden and Democratic agendas," Caldeira said.

"As matters stand, neither has happened. If, for example, the Court were to strike down the ACA [Affordable Care Act, or Obamacare], I can imagine a serious effort to expand the Court. To make a difference, however, the Court would have to be expanded by several seats, which would be very difficult to put over even if the Democrats had a large majority in the Senate."

Caldeira noted that the Court in 1937 "had invalidated law after law, central parts of the New Deal," which was Roosevelt's central policy agenda. The present Court has not taken similar steps.

Paul Collins is a legal studies and political science professor at the University of Massachusetts, in Amherst. He believes expanding the Court is unlikely at this time but told Newsweek that may not be the point of the Democrats' push.

"I'm not sure that the purpose of introducing the legislation is to actually pass it," Collins said. "Instead, I think congressional Democrats are putting Supreme Court justices on notice as they deliberate over controversial cases involving Obamacare, religious liberty, abortion, and immigration."

"They are sending a signal that, if the Court's conservative majority goes too far in enacting a conservative agenda, Congress is willing to retaliate. This threat may be enough to moderate the Court's conservative members," he said.

Collins sees other potential ways to reform the Court.

"I believe the most logical policy change would be to enact term limits for Supreme Court justices," he said. "This would help depoliticize the Court by taking Supreme Court appointments out of the partisan spotlight by giving each president a set number of Supreme Court appointments.

"So, instead of a one-term president like Donald Trump getting three Supreme Court appointments almost at random, we would know in advance how many appointments a president would make, which would lower the partisan stakes."

Both Caldeira and Collins pointed to the fact that Roosevelt's plan stemmed from the Court striking down key parts of his agenda. But is the original expansion plan from 1937 an option today?

Susan Dunn, humanities professor at Williams College in Massachusetts, is the author of several books about Franklin D. Roosevelt, including 2018's A Blueprint for War: FDR and the Hundred Days that Mobilized America. She told Newsweek Roosevelt's plan could still work today.

His proposal would have allowed the president to nominate a new justice whenever a sitting member of the Court turned 70 and did not choose to retire.

"In my opinion, his plan is still a perfect plan for today," Dunn said. "For example, if [Stephen] Breyer—who is almost 83—declines to resign now, according to FDR's plan, the president would nominate an additional justice to be appointed to the Court. [Samuel] Alito is 71—add another justice if he declines to resign. And Clarence Thomas is 72. Add another justice."

"So far, that is three additional justices, according to FDR's plan," she said. "The Democrats today suggest a total of 13 justices, meaning adding four more. I'd go with FDR's plan instead."

Democrats seem unlikely to take up the 84-year-old proposal but even if they did, getting the Court expansion through the House and Senate may prove too high a hurdle. As Caldeira pointed out, reform was more likely then than now.

"FDR was dead serious about it and he had 76 Democrats in the Senate," Caldeira said. "Had the majority leader, Joe Robinson, not died in July 1937, the expansion bill probably would have passed."

Moreover, the fact that President Joe Biden is not leading the charge could prove a significant factor.

"The biggest difference is that progressive Democrats in Congress and the public are leading these efforts, instead of the president," Collins said.

"Biden's decision to appoint a commission on Supreme Court reform is intended to satisfy these progressives, but also signals that he is not especially excited about actually reforming the Court.

"To the contrary, Roosevelt was serious about enacting Supreme Court reform to ensure his New Deal agenda would survive judicial review. Ultimately, major reform was unnecessary since the Court began to support New Deal legislation, but the threat was very real."

Newsweek has asked Representative Jerry Nadler and Senator Ed Markey for comment on this article.

Democrats Announce the Judiciary Act of 2021
Rep. Hank Johnson (D-GA), Sen. Ed Markey (D-MA), and House Judiciary Committee Chairman Rep. Jerrold Nadler (D-NY) hold a press conference in front of the U.S. Supreme Court to announce legislation to expand the number of seats on the Supreme Court on April 15, 2021 in Washington, DC. The bill is the biggest push at Supreme Court reform since 1937. Drew Angerer/Getty Images