Packing the Supreme Court and Four Other Ways Democrats May Block Trump's Conservative Majority

Following the death of Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump has expressed his desire to nominate her successor with a backlash over Republican plans to push this through the Senate weeks from election day.

Democratic presidential candidate Joe Biden has said the election should be held, then whoever is victorious should put forward who they feel ought to take the vacant seat.

Republicans have argued that constitutionally, Trump is within his rights to put his choice forward—though they have faced accusations of hypocrisy over previous stances on presidents putting Supreme Court nominations so near to an election.

Trump's nomination being a conservative justice place such figures in the majority, with Democrats perhaps then looking at means to counter this imbalance.

Below, Newsweek looks at methods in which they could do so.

Packing the Court

While the number of justices on the Supreme Court has been the same since 1869, it is within Congress' power to change the size of the bench and the number did fluctuate beforehand.

Democrats have said nothing is off the table when it comes to how they might counter the situation.

Should Biden win the presidency and the Dems also control Congress, this is an option they might look at. However, this outcome and possibility would be dependent on November's outcome.

Franklin Roosevelt attempted to pack the court when he was president in 1937, in a bid to add six justices, one for every member of the court aged more than 70 years old.

Adding members of the court in such a way could allow Dems to restore balance of liberal to conservative, or slant it to being more liberal.

15 Justices proposal

Another move, similar to packing the bench, has been to expand the number of justices with an even split in terms of partisan affiliation.

There was the suggestion of expanding the court in the Democratic primaries, with former Democratic presidential candidate hopeful Pete Buttigieg putting forward such a plan.

He suggested the court could be expanded to 15 members with the aim of restoring some political neutrality to it.

The 15 would be made up of five conservative, five liberal and five non-political justices under his concept.

Rotate judges

Another suggestion which emerged in the Democratic primaries would be to rotate the justices, with Vermont Senator Bernie Sanders suggesting such a course of action.

He rejected the notion of packing the court, suggesting if Democrats did this, Republicans would likely just look to do the same the next time they had power giving them the opportunity.

"But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court," he said.

In regards to this, he said on MSBC that while a federal judge has a lifetime appointment the Constitution "doesn't say that lifetime appointment has to got be on the Supreme Court — it's got to be on a federal court."

However, the constitutional feasibility of doing this was questioned at the time, with it likely Supreme Court Justices would have to agree to any move to make them change court.

The method in which justices could be rotated is unclear, though it would likely be a complex process with those moving down courts needing to be cooperative and those moving up likely needing to be nominated and voted in also.

Term Limits

Proposals to limit the terms of Supreme Court justices have been put forward in the past, with the suggestion of an 18-year tenure followed by service on a lower court, in order to fulfil the promise of a good behavior term on a federal court for appointees.

"Lifelong appointments for justices are resulting in increasingly longer terms, with significant implications for the politicization of the court. Creating term limits for justices would establish regularity in vacancies and help to avoid an escalation of the negative outcomes linked to justices' ever-longer lifetime tenures," Maggie Jo Buchanan, the director of legal progress at the Center for American Progress, wrote in a piece arguing the case earlier this year.

Biden, however, previously told The New York Times he would be against such limits.

Asked why, he said: "Because that structural change requires constitutional amendments. It raises problems that are more damaging than the problem that exists."

Disempowering the Court

An argument has been made in the past for taking power away from the Supreme Court to some extent.

Some legal scholars have suggested moving powers out of its jurisdiction, to reform what power the court actually has would be a more productive means of reform in the long term.

Another means alongside shifting powers could be looking at making it necessary for the Supreme Court to have supermajority agreement on striking down laws. At present, it only requires a five to four majority. There could perhaps be an argument to make it so more than a simple majority is needed, in order to stymy its power.

"As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject," Ryan Doerfler, of University of Chicago Law School and Samuel Moyn of Yale University said in an article entitled Democratizing the Supreme Court earlier this year.

"More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena, which for progressives is where they have to occur now—and should occur—if they take place anywhere."

Brian Morgenstern, White House deputy press secretary, said in a statement on the criticism of Trump's push to place his Supreme Court nominee that Dems would "stop at nothing to erode the constitution."

"The Speaker threatened to impeach the President—again—for simply fulfilling his constitutional obligation. Numerous Democrats are threatening to pack the court and say things like 'nothing is off the table.' These are bizarre and dangerous power grabs by Democrats who will stop at nothing to erode the constitution to enact their radical agenda. President Trump will fulfill his constitutional duty to protect our God given rights and do his part to fill the seat," he said.

Ken Farnaso, deputy national press secretary for the Trump campaign, said it was the president's duty to fill the seat.

"Elections have consequences and Democrats are notorious for moving the goal posts, impeaching for politics, and threatening to pack the court when things don't go their way. The President has the Constitutional duty to fill a vacant seat and the Senate has the authority to advise and consent—that is exactly what Republicans will be doing," he said.

Newsweek has contacted the Biden campaign for comments on such potential moves to alter the Supreme Court's composition or powers.

People gather at a makeshift memorial to honor Supreme Court Justice Ruth Bader Ginsburg in front of the US Supreme Court as the sun sets on September 19, 2020. Samuel Corum/Getty Images

Update 09/22/20: This page has been updated with comment from the White House and the Trump campaign.