The Washington Times Weekly
Justices fear appearance of partisanship with court expansion
Only a handful of Supreme Court justices have publicly commented on proposals to add seats to the court, but those who have spoken out are fiercely opposed.
That opposition doesn’t break along ideological grounds either, as justices appointed by both Republican and Democratic presidents have condemned previous efforts to expand the court.
House Democrats on Thursday launched the most serious effort to pack the court since President Franklin D. Roosevelt in 1937. Though the move was hailed by liberal activists and lawmakers, liberal icon Ruth Bader Ginsburg was a strong opponent of the idea.
“Nine seems to be a good number. It’s been that way for a long time,” Ginsburg told NPR in July 2019. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
Ginsburg was appointed by President Clinton in 1993 and served on the high court until her death in September 2020.
In the interview, she maintained that adding more justices would make the court “look partisan.”
“It would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”
Another Clinton appointee, Stephen G. Breyer, also warned against making
changes to the nation’s highest court.
Justice Breyer, who has served on the court since 1994, said that adding seats would undermine the public’s confidence in the court’s decisions.
“Structural alteration motivated by the perception of political influence can only feed that perception,” he said in a speech at Harvard Law School. “There can be no shortcuts to it.”
The late Chief Justice William H. Rehnquist repeatedly cautioned against packing the court. He said the “right way” to shape the court is allowing elected presidents and senators to follow the normal process of filling vacant judgeships.
In a 1984 speech, Rehnquist said that while presidents appoint jurists who share their political and social views, a judge may
“change his way of looking at things when he puts on the robe.”
Roosevelt’s plan to expand the court to gain favorable votes was met with opposition by justices in the 1930s.
The conservative-leaning court voted against most of his New Deal plans. As tensions increased, Roosevelt sought to add four seats to the bench.
Then-Chief Justice Charles Evans Hughes authored a letter to the U.S. Senate blasting Roosevelt’s plan. Hughes said the court would become inefficient with additional judges.
“There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide,” he wrote.
Associate Justice Louis Brandeis, whom historians have dubbed the first liberal activist judge, helped draft the letter.
Roosevelt’s plan was ultimately defeated after the court sprung its own surprise. In a case deciding the validity of Washington state’s minimum wage law, Justice Owen Roberts switched his vote to uphold the measure.
The sudden shift gave Roosevelt a victory in the high court, defusing his desire to pack it with more justices. Historians have painted Roberts’ vote as a politically motivated shift to protect the court’s integrity from Roosevelt’s plan.
The decision is so widely credited with keeping the number of justices on the court at nine that humorist Cal Tinney called it “the switch in time that saved nine.”