Commentary: Court packing issues loom supreme in November

By Reid K. Beveridge

Many Americans don’t know it, but the U.S. Constitution doesn’t specify how many justices there will be on the U.S. Supreme Court. It’s been nine since 1869. But it started out as five in 1789.

Reid K. Beveridge

One of the big issues in this year’s presidential debates is whether the Democrats, if they win the White House and a Senate majority, might increase the number of justices, especially if Judge Amy Coney Barrett, nominated to the high court by President Donald Trump, is confirmed by the Senate between now and January, as seems likely.

What we are talking about is referred to as court “packing.” The term comes from the proposal to increase the number of justices in 1937. President Franklin D. Roosevelt, angered at the Supreme Court for overturning some of his New Deal laws, proposed adding justices, so he would have a majority. But even at the height of Roosevelt’s power after his landslide reelection in 1936, his efforts failed. Court packing turned out to be highly unpopular, and not even a nearly two-thirds Democratic Senate would take it up.

Along those same lines, there are Democrats discussing admitting more states to add up to four members to the U.S. Senate. Places named are the District of Columbia and Puerto Rico. Some proposals also include the Virgin Islands and Guam. The theory is that they would elect Democrats, giving them an instant majority or a bigger majority. Or a Democratic majority that might last for generations.

Hence, how interesting it is that neither presidential candidate Joe Biden nor vice presidential candidate Sen. Kamala Harris will answer the question of whether they support packing the Supreme Court or admitting D.C. and Puerto Rico as states. Both were asked such questions during recent debates.

Biden simply said he wouldn’t answer the question, because it would make the subject the biggest issue of the presidential race. Well, duh? No foolin’. It is a big issue, and it is instructive that he won’t answer the question. Most of us have to conclude that his answer is “yes.” Same for Sen. Harris and her non-answer, as noted by Vice President Mike Pence at their debate.

A further objection to court packing is that any 2021 attempt would simply begin a series of escalations that might, in a few years, give us a much, much larger court. In other words, if the Democrats added two or four seats, then the next time the Republicans gained majorities in Washington, more justices would be added, so that the party in power always had a court majority.

This might come sooner than one might imagine. That is because court packing remains quite unpopular with the electorate, just as it was in 1937. But the times are very different. Even though the Democrats continued to rule in Washington until 1953, they never attempted to pack the court again. Of course, as time wore on and justices died or retired, Roosevelt got more appointments.

Then, too, there is the fact that, assuming Judge Barrett is confirmed, adding two justices wouldn’t give the Democrats a liberal majority. Further, 13 might not be a popular number. That means 15, which would be an addition of six justices all at once.

There was no question at the vice presidential debate the other night about adding states. But it is not a new idea. The District of Columbia has been seeking statehood for at least 30 years. The idea of Puerto Rican statehood goes back much further. Indeed, Puerto Rico is logically the 51st state for several reasons. Its adequate population would yield it three members of the House. It is contiguous territory and surely no farther away than Hawaii or even West Coast states. But, unlike D.C., it is by no means certain that it would elect Democratic senators.

The District of Columbia is a different issue. The national capital’s status is mentioned in the Constitution. Hence, it is unclear if statehood would be constitutional, given the requirement for a seat of government controlled by Congress.

It may be true that COVID-19 will remain the biggest issue in this year’s presidential race. But the coronavirus will be history in a year or two. A larger Supreme Court or more states will not.

Reid K. Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He now resides in Milton.