Why Court Packing May Be a Very Real Possibility in 2021

Chris Remington
Published Sep 19, 2023

Since the presidency of President Joe Biden began in January, people have speculated about promises he would keep and which he would waiver as the months went by. After all, with total control of both Congress and the presidency, many of his wishes could be realized with little resistance. One of those included the topic of packing the courts. This essentially means that additional justices would be added through congressional action. Although this issue was not something that was at the top of his list, it has nevertheless been an issue that congressional Democrats have been wanting to look at.

Promises Kept?

On April 14th, 2021, Congressional Democrats stated that they would soon introduce legislation that would expand the Supreme Court from nine to thirteen justices. This is something that many progressive activists have been pushing for and has recently become a very real possibility. This is because the Democrats control Congress as well as the presidency. However, that does not mean it is a popular move by them. In fact, the question of packing the courts was first brought into the public eye during the 2020 presidential debates. Then-candidate VP Joe Biden was asked about his views on "court-packing" and if it would be something that he would do if voted into office. He replied by saying that it was something that he was not a fan of but that he would want a panel of experts to look into. To many, this neither meant a yes or a no.

Is This a Possibility?

Adding justices to the Supreme Court is a possibility as long as Congress can come to an agreement. Many have speculated that this is the time to begin the process since Democrats control Congress, but the fact is that the likelihood of it passing is not very likely. This is due to the fact that Democrats only have a slim majority. In fact, House Speaker Nancy Pelosi stated that she has no plans to bring the issue to the floor. She was quoted as saying, "I don't know that that's a good idea or bad idea. I think it's an idea that should be considered."

Arguments Against Court Packing

Although President Biden has come out to say that he does not fully support packing the courts, Republicans are already pushing the narrative that if he allows this to proceed, he is voiding the votes of millions of Americans. This is because under former President Trump, three conservative justices were appointed, with one of those being appointed only a few weeks before the election. However, many have speculated that progressives are attempting to push for this due to Senate Minority Leader Mitch McConnell blocking President Obama from appointing a progressive justice weeks before the 2016 elections.

The Faces Behind the Legislation

Although the bill is going to be introduced by Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York, other faces will join them in the announcement. The other figures include progressive activists Aaron Belkin, Chris Kang, and Meagan Hatcher-Mays. Former Senate Democratic leadership aide Brian Fallon stated that Democrats need to stand up and stop conceding the Supreme Court to the Republicans.

Top Democrats Refusing Changes to the Court

A common misconception about court-packing is that all congressional Democrats are on board with this. The fact is that many of the top leaders in the party are either distancing themselves from the situation or outright stating their disapproval. Senate Majority Whip Dick Durbin stated that he was concerned about Mitch McConnell's secret tactics to halt court-packing in order to ensure the conservatives control the courts for years to come. However, he also said that he was not ready to fully commit to the idea of court-packing but that President Biden is doing the right thing by creating a commission made up by both liberals and conservatives to look into the matter. Today, Mitch McConnell calls for Democrats to stand down on the matter, often using the words of the late Justice Ruth Bader Ginsburg, who often warned about the dangers of packing the courts.

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