What Is “Court-Packing” and Why Should Democrats Consider it After Brett Kavanaugh’s Nomination?

In 1937, President Franklin D. Roosevelt proposed a bill that would add six more justices to the Supreme Court. Roosevelt’s plan, which is now known as “court-packing,” may be the Democrats’ only hope of continuing the fight for LGBT rights, women’s rights and gun control.

Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. Justice Kennedy served as the swing vote in the court, and leaned left in cases involving LGBT rights, Obamacare, abortion and the death penalty. Justice Kennedy was more conservative on religious liberty and campaign finance laws. His retirement spread panic throughout the Democratic party. On Monday night, Trump nominated Republican Judge Brett M. Kavanaugh to fill Justice Kennedy’s position.

Why should Democrats be worried? First, the fate of Roe v. Wade and women’s rights is now in the hands of a Trump appointee. During a Fox News interview, Trump said he would overturn Roe v. Wade “automatically” if he could get two or three new Supreme Court justices “because I am putting pro-life justices on the Court.” A completely conservative court could also reverse LGBT rights, slow the progress of obtaining full equality and enable discrimination. Kavanaugh would also lean fully to the right concerning the Second Amendment, despite the mass shootings across the nation. Finally, a conservative Supreme Court would favor religious liberty in relation to the First Amendment. Kavanaugh is only 53 years old and could have more than a decade’s worth of impact on Supreme Court rulings.

So, what can Democrats do to stop the soon-to-be conservative court? The first plan of attack is to postpone Kavanaugh’s confirmation until the midterm elections. However, Senate Majority Leader Mitch McConnell announced that he will hold Kavanaugh’s confirmation vote before the midterm elections. Kavanaugh only needs a simple majority vote from the Senate to be confirmed and Republicans currently hold the majority at 51 to 49. The last Supreme Court nominee to lose a confirmation vote while the president’s party held control of Congress was in 1930.

The second option, and possibly the last, for Democrats is to take a play from Roosevelt’s book and initiate a second attempt to pack the courts. In 1937, Roosevelt introduced his bill to increase the number of Supreme Court justices by six and ultimately aid in completing his New Deal legislation. He planned to add one justice for every justice over the age of 70 in order to reshape the ideology of the court. The bill faced extreme backlash, but although Vice President John Nance Garner and Democratic congressional leaders suggested a compromise that would add two of three justices to the court, Roosevelt refused. The court would soon have a change of heart and begin voting in favor of the New Deal. Yet the Senate Majority Leader Joe Robinson said he could still get Roosevelt “a couple of extra justices tomorrow” if he toned down the extreme demands of six judges. Roosevelt still refused.

Today, we imagine Democrats would be just fine with “a couple of extra justices,” and it could be a real possibility. The Constitution does not mandate that the Supreme Court is composed of only nine justices—in fact, the Constitution doesn’t declare a set number for the Supreme Court at all. Congress has the power to decide the number of justices and that number can change. Before the spread of the negative term “court-packing” during Roosevelt’s presidency, the number of Supreme Court justices was changed multiple times. In 1801, Congress decided that the court would consist of five judges. Since then, the number has increased to seven in 1807, nine in 1837 and even 10 in 1863. However, in 1866 Congress passed the Judicial Circuits Act, which prevented the soon-to-be-impeached President Andrew Johnson from adding more justices. The Act set the number of justices at seven. By 1869, only two of the 10 seats had been vacated and Congress added one back, making the official number nine. Congress has not changed the number since.

Following Trump’s nomination of Kavanaugh, Democrats’ main focus should be securing control of Congress during the midterm elections in November. With the majority, the party could expand the number of Supreme Court justices and pack the courts with left-leaning judges, or at least more moderate ones. Republicans have chosen 15 of the 19 Supreme Court justices in the past 50 years. It’s time for Roosevelt’s plan to finally take action and reshape the ideology of the court.