On Oct. 19, Senator Ted Cruz, along with five other Republicans from the U.S. Senate, put forth a constitutional amendment aimed at permanently setting the size of the Supreme Court to nine Justices. Only a few short years ago, it would have been unthinkable that such an amendment would be warranted — we haven’t changed the size of the Supreme Court since 1869 after all. However, recently the autonomy of the highest court in the land has been thrown into question, following the intentionally ambiguous platforms of Democratic presidential candidate Joe Biden.
Court-packing first began to creep its way into mainstream discussion when back in 2018, during the confirmation of Justice Kavanaugh, Democrat Representative Ocasio-Cortez stated, “I think that we take back the House, we take back the Senate, we take back the presidency, and we pack the Supreme Court of the United States of America.” Since then, other Democrat leaders and pundits have tossed around court packing as a means to reverse the newly-conservative majority; however, this remained largely in the background of our national discourse.
During the 2020 election cycle, calls have been renewed by supporters of Joe Biden for him to pack the Supreme Court with liberal Justices should he win the presidency. He has intentionally left this up in the air, referring to the question of whether or not he would do it as a “distraction,” a defense echoed by his running mate Senator Kamala Harris during the Vice Presidential debate despite being asked point-blank by the moderator and twice by Vice President Mike Pence. Biden has repeatedly said that the American people will “know my opinion on court-packing when the election is over.” The dodges only became more brazen, with the most egregious example coming from his interview with KTNV reporter Ross DiMattei. After being accused by Biden of only asking him about court-packing at the behest of Republicans as a means to shift the discussion away from “what they’re doing to the court right now,” which he did not specify, DiMattei followed up asking “Well, Sir, don’t the voters deserve to know…?” to which he was quickly cut off by Biden, who answered “No, they don’t.”
This may appear to most as being wildly hypocritical. Biden, as well as the broader Democratic Party, has repeatedly decried President Trump’s nomination of Amy Coney Barrett as a replacement to the late Justice Ruth Bader Ginsberg on the Supreme Court on the basis that the American people should decide who fills the highest court of the land through who they elect as the next President, and yet Joe Biden has told these voters to their faces that he refuses to tell them his stance on court-packing because he doesn’t want them to talk about it, apparently perceiving this as making for better optics than revealing his actual position.
With the increasing probability that either Joe Biden would adopt court-packing or that the broader Democratic Party would continue to pursue it afterward even should he lose, Republicans such as Ted Cruz are vying to permanently take this tool off the table. He has, however, received criticism that by eliminating court-packing through a constitutional amendment, he would be contradicting the Republican party’s promotion of constitutional originalism, ideologies common among President Trump’s Supreme Court picks: Gorsuch, Kavanaugh and Coney-Barrett. However, this couldn’t be further from the truth.
Originalism is a doctrine that not only stresses interpreting the Constitution as written but also interpreting its legislation as it was intended when written. Court-packing has not been deemed as unconstitutional on the basis that the Constitution does not establish a set size for the Supreme Court; however, the ways in which this un-enshrined power has been used throughout history, and how Joe Biden would be using court-packing should he do so as suspected, would be a blatant perversion of the checks and balances of our Constitution. By design, our three branches of government retain a certain level of autonomy, being dependent on one another but still retaining powers and responsibilities unique to them. Originalism is dependent on applying the Constitution based on the context in which its amendments and clauses were made, checks and balances being one of the most evident themes not only across its legislation, but throughout the Federalist Papers providing the rationales of our Founding Fathers in how they constructed it.
Court-packing has exclusively been used as a power grab when applied, subverting the autonomy of the courts, and filling them with Justices who don’t simply fall under certain ideological umbrellas, but are loyal to specific administrations, consolidating the power of individual leaders over the judicial branch. In such a system, the Supreme Court serves as little more than the legislative arm of the White House, rendering our system of checks and balances a symbolic gesture. This power-hungry strategy is only enabled by a grey area that no true originalist would, in good faith, preserve at the expense of the separation of powers.