Packing the Courts
When Election Day was just weeks away, Presidential Candidate Joe Biden began receiving pressure from both sides of the political aisle to say whether he would try to “pack” the Supreme Court if he were to win in November and Democrats were to gain control of Congress. After repeatedly dodging the question, Biden finally announced that he plans to create a “bipartisan commission of scholars” to explore ways to change the Supreme Court, which he said is “getting out of whack.”
The issue of court packing came about as a result of the Republican-controlled Senate moving forward with the confirmation hearings for President Trump’s Supreme Court nominee, Amy Coney Barrett, despite protestations from the Left stating that Justice Ginsberg’s replacement should be chosen by the next President. It is crystal clear that the responsibility of nominating a Supreme Court Justice belongs exclusively to the President of the United States, and until Inauguration Day 2021, that is still Donald Trump. According to Article II, Section II of the U.S. Constitution: “He [the president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” Nevertheless, the Democrats have continued to object and are now calling for Biden to change the make-up of the highest court in the land if and when he is sworn in as President.
The concept of packing the Court is new to many, but it is not new to American politics. Court packing is a political strategy used to add more justices to the Supreme Court in order to flip partisan control and secure a desired majority. It was first introduced in the late 1930’s by President Franklin D. Roosevelt in response to the Supreme Court striking down a number of Roosevelt’s “New Deal” programs. In fact, during this time the Supreme Court struck down more pieces of legislation than at any other time in history. In an effort to change the balance of the court so that he could get more favorable rulings on his New Deal legislation, Roosevelt introduced the Judicial Procedures Reform Bill of 1937 -- now known as the “court-packing plan” – which called for appointing six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served on the Court for 10 years or more.
This was seen as an unprecedented power grab that would chip away at the Constitution’s separation of powers. The majority of the public didn’t support it, and several Supreme Court Justices publicly expressed their opposition to it. Even so, the debate over this issue lasted for 168 days, dominating newspaper headlines, radio broadcasts, and kitchen table talk throughout the country. Due to Roosevelt’s popularity among American citizens, there was enormous controversy surrounding this issue. However, many believed it was still likely to pass.
In the end, it was West Coast Hotel Co. v. Parrish, a Supreme Court case that, ironically, had absolutely nothing to do with packing the court, that finally put the issue to rest. The case involved Elsie Parrish and her husband who worked at the Cascading Hotel in Wenatchee, Washington. Mrs. Parrish sued for the difference between the weekly salary she and her husband were being paid and the $14.50 per week of 48 hours established as the minimum wage by the state of Washington. On direct appeal, the Washington State Supreme Court overturned the lower court ruling and found in favor of the West Coast Hotel Co., invalidating the minimum wage law as unconstitutional.
On appeal, in a 5-4 vote, the U.S. Supreme Court upheld the minimum wage law from the state of Washington -- a statute essentially no different from the New York minimum wage law it had struck down only months before – and The West Coast Hotel Co. was required to pay back wages to Elsie Parrish. So, how did this happen? Justice Roberts switched his vote and sided with the liberal Justices as part of a trade-off whereby the Supreme Court would refrain from striking down Roosevelt’s New Deal legislation, and Roosevelt would not follow through with the court-packing bill. As a play on the old proverb meaning a timely effort will save more work later, this incident became known as “the switch in time that saved nine.”
Ironically, court-packing has only become a hot button issue during this election cycle because of the passing of Justice Ginsburg; yet, it was she who not only stated that the right number of justices on the Court is nine but also declared, “If anything would make the court look partisan, it would be that – one side saying, ‘When we’re in power, we’re going to enlarge the number of judges so we would have more people who would vote the way we want them to.’”
It's important to note that last month, Governor Northam presented his proposed two-year budget for the Commonwealth, which includes a plan to pack the Virginia Court of Appeals by allocating $5.1 million to increase the number of judges from 11 to 15. Keep in mind, the power to nominate these new judges rests in the hands of the General Assembly, which the Democrats took control of in 2019. It can hardly be seen as coincidental that Gov. Northam suddenly wants to pack the court after his party gains control of the legislature.
Keep in mind that one of the main reasons the United States has survived as the world’s longest lasting republic is because our Founding Fathers had the wisdom to separate our government into three distinctly separate branches – one that makes the law, one that enforces the law, and one that interprets the law. If the Left gets their wish, and the Supreme Court is used as a weapon for partisan politics, it will become increasingly vulnerable to the influence of special interest groups and an endless pattern of judicial bias will be created. We cannot afford for the highest court in the land to become a political football.
The United States has changed a great deal since Roosevelt introduced the concept of court packing. However, the principles upon which our nation was built have remained the same. As Ronald Reagan continually argued during his tenure as President, it’s the principles of our nation’s founding that are the source of any greatness that America has achieved, and a failure to adhere to those principles will surely bring disaster.