1937 – Oval Office – President Franklin Delano Roosevelt (FDR) is frustrated.  His New Deal initiatives are being struck down by the United States Supreme Court (SCOTUS).  So, he comes up with a way to fix it. 

The Judicial Procedures Reform Bill of 1937 “court-packing plan”was a legislative initiative proposed by FDR to add more justices to SCOTUS in order to obtain favorable rulings regarding his New Deal legislation that the Court had ruled unconstitutional. 

To pack the court means to add judges to a court. SCOTUS is made up of nine justices, with one of those justices being the Chief Justice.

The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.

The plan was a disaster.  The Constitution does not say how many justices are to sit on SCOTUS. There were originally six justices on the Supreme Court. That number changed several times, but in 1869, Congress decided to set the number at nine justices.

Congress was not keen on giving FDR that much power.  Henry F. Ashurst, the Democrat chair of the Senate Judiciary Committee, held up the bill by delaying hearings in the committee. He said, “No haste, no hurry, no waste, no worry—that is the motto of this committee.”

While FDR was a great War President, the American people viewed his attempt to pack the Court as overbearing, interfering with the judicial branch, and an attempted massive power grab. 

2020 – Presidential Election –  President Trump’s decision to nominate Judge Amy Barrett to fill Ruth Bader Ginsburg’s seat on SCOTUS has some Democrats in Congress angered at the timing of the move, have called for a change in the nation’s highest court.  Their idea is to resurrect FDR’s attempt at court packing.

Democrats correctly fear that SCOTUS will lean strongly to the right, potentially for 30 or 40 years, Democrats have threatened to change the ideological complexion of the court by expanding the number of justices who hear the nation’s top cases.

The rude and ineffective Senate Minority Leader Chuck Schumer, D-New York, told members of his caucus that he would “retaliate” if the GOP went forward with Barrett’s nomination.

Former Vice-President Biden and running mate Kamala Harris have so far refused to say if they would support packing the court should Democrats win the presidential election, win the Senate and keep the House.

Both Biden and Harris were asked about it in debates, and both refused to answer the question.

Recently, when Biden was asked at a campaign stop in Phoenix if he would support the idea, he said, “You will know my opinion on court-packing when the election is over.”

That is translated into “You bet I am going to pack the court.” 

Vice President Mike Pence pressed Harris about her support for packing the court. She did not give an answer.

“The American people deserve a straight answer,” Pence said. “And if you haven’t figured it out yet, the straight answer is they are going to pack the Supreme Court if they somehow win this election.”

Rep. Jim Jordan, R-Ohio, submitted a resolution to Congress recently that would limit the court to nine justices.

“Any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our nation’s highest court,” the resolution reads.

Democrats know that SCOTUS will be solidly conservative for decades.  There is little doubt that if Biden is elected, he will focus on getting control of the Senate and packing SCOTUS with liberal judges. 

Elections do have consequences.