Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court.  The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing.

Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan.  
Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson.

Credit: Fred Schilling, Collection of the Supreme Court of the United States

Should Nine Supreme Court Justices be the Incontrovertible Precedent?

Renewed interest in packing the Supreme Court has come under scrutiny by politicians across the political spectrum. Court-packing refers to increasing the number of Justices on the Supreme Court to enrich the majority party’s objective. Throughout history, the fluctuation of Justices on the highest Court corresponds to partisan motives. The Supreme Court, however, is not a political pawn – and once it becomes one, we no longer have a reliable democracy. Checks and balances is not a principle of external manipulation but rather an internal application that each branch – legislative, judicial, and executive – must uphold irrespective of political motives.

Checks and balances, where each branch of government checks the power of the other two branches, must not be undermined so that we may uphold the purpose of government – to amplify the individual liberties of citizens. John Locke describes, in his Second Treatise of Government, that the “only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one among another, in a secure enjoyment of their properties.” Individuals enter the social contract to receive the security of their liberties that are unprotected in the state of nature where they are subject to intrusions by the ambitions of others. Therefore, the government must not impede individual freedoms and natural rights but enhance them by creating, enforcing, and resolving disputes regarding the law that prevent the insecurity associated with the state of nature. Checks and balances are vital to ensuring that the government doesn’t overreach its power but continues in its sole purpose of amplifying said individual liberties.

Article III, Section I of the United States Constitution provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress established the federal court system in its first session by passing the Judiciary Act of 1789. Although the Constitution requires the establishment of the Supreme Court, Congress decided how to organize the federal court system through this Act. This resulted in the first six Justices of the Supreme Court being confirmed two days later. Through this Act, Congress also exercised its enumerated power by establishing lower federal courts. In spite of the Constitution granting Congress the latitude to organize federal courts, no one branch has more authority than the other two and each is susceptible to being checked by the others.

Federalist 51, written by either Alexander Hamilton or James Madision, includes that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” This paper defends the idea of checks and balances to protect the liberties of citizens by precluding one branch from becoming more powerful than the others. This paper further discusses that each branch’s power “should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.” Therefore, the ultimate authority and check on all branches of government is the people, which ensures the pursuit of the common good. This common good, however, is not pursued when politicians act on their own partisan whim and seek to pack the court. The integrity of the United States government should always trump political ambitions.

Regrettably, the topic of court-packing has been constantly reintroduced by those leaning left on the political spectrum. It is important to note, though, that a multitude of individuals who also lean left do not condone this idea. For example, President Joseph R. Biden, Jr., the 46th and current Democratic President, has conspicuously expressed that he does not support it.

After the Supreme Court ruling of Dobbs v. Jackson Women’s Health Organization, court-packing was put into conversation again by left-leaning individuals. In this case, it was ruled that the Constitution does not confer a right to an abortion. Therefore, Roe v. Wade and Planned Parenthood v. Casey were both overruled. In the opinion, it was noted that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” It was further substantiated that “the right to abortion is not deeply rooted in the Nation’s history and tradition.”

Some who disagreed with this Supreme Court ruling were willing to subvert the very values associated with our democracy. They insistently demanded that Justices be added to the Supreme Court since the government was unified, in which one party controlled the presidency and both chambers of Congress. The intent of increasing Justices is to overturn decisions that the majority party disagrees with – playing ball with stare decisis in a reckless manner. This would, additionally, result in all future votes being swayed towards the manipulated majority in the Supreme Court. By virtue of this, there would be an inescapable cycle of using the Supreme Court as a political tactic, allowing the legislative and executive branches to have significant authority over the judicial branch.

The Supreme Court’s powers will quickly dissipate if court-packing occurs. For example, judicial review, a fundamental power of the Supreme Court, would be severely undermined. The Justices would reflect the ambitions of the majority party, which would result in a lack of preserving checks and balances. Therefore, instead of reversing unconstitutional violations and overreach committed by the legislative and executive branches, the three branches would unite in upholding injustice.

The government no longer protects the liberties of their citizens when it is united against them. In John Locke’s Second Treatise of Government, he also writes, “And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.”

Comparably, had the founding fathers implemented a plural executive, as was discussed in 1787, it would have undermined the credibility of the executive branch. This type of executive system would have dwindled the public’s faith, instilling terror that the first three words of the Constitution would incrementally cultivate into “We the Government” instead of “We the People.” Hence, during the Constitutional Convention, the delegates had come to a consensus that the government must be limited, so they agreed upon a single executive. 

The apprehensions expressed towards a plural executive were reflected in the Constitution, whereas the concern of the addition or removal of seats on the Supreme Court was not. Instead, Congress holds considerable jurisdiction in determining the Court’s paradigm as noted in Article III, Section 1 of the Constitution.

Most noteworthy, with the immense jurisdiction that Congress holds over the Court, there has been a stagnant number of Supreme Court Justices, which has evolved into an embraced precedent for 153 years. 

Before this sustained precedent, Presidents John Adams, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant successfully altered the number of Justices on the Supreme Court; the number of Justices ranged from a low of five to a high of ten before nine seats became the custom. Following the last successful modification, President Franklin D. Roosevelt was hampered in his endeavors to “pack the court,” even with a unified government. Some Republicans and Democrats have generally shared the notion that the number of Justices on the Supreme Court should remain at nine, which is something to reckon with.

In every instance where the number of Justices was modified, the rationale involved exploiting the Supreme Court for devious political efforts. For example, in 1866, Congress decreased the number of Justices from ten to seven to restrain President Andrew Johnson’s power due to him removing his respected Secretary of War from office. In addition, Congress also wanted to impede him from appointing Southerners to the Court. If Congress’ power persisted to this extent, it would be the most dominant branch by granting itself excess powers, dissolving the principle of checks and balances. If the president vetoed bills, criticized representatives for not being delegates, or perhaps wore a suit with a loose thread, Congress could decide to limit the president’s power by employing the Supreme Court as a political tactic.

In 1869, when Congress set the number of Justices to nine, establishing a 153-year precedent, a controversy arose – one that should rise again, should the number of Justices change. When the number increased from seven to nine, President Grant had the discretion to appoint two new Justices, whose addition led to the overturning of Hepburn v. Griswold, which declared parts of the Legal Tender Act unconstitutional. Due to the president’s agency to add two Supreme Court Justices that reversed a decision founded on judicial review, the executive branch had excessive authority over both the judicial and legislative branches. 

Court-packing would require the modified Supreme Court to revisit each prior decision for consistency and integrity within each ruling. However, this is impossible and impractical. To maintain the integrity of the United States government and for the protection of checks and balances, packing – or any modification for that matter – of the Supreme Court must not occur.

However, proponents of packing the Supreme Court contend that it would ensure an ideological balance. They assert that the Supreme Court is politically partisan and the only way to rebalance it would be to add more Justices. Democrats have won five out of the last nine presidential elections but have appointed three of the sitting nine Justices. Therefore, they are concerned with a minority party appointing the majority of Justices. They are also unsettled by Justices preserving the majority by strategically retiring under a president of their political party. Seemingly, proponents of packing the Supreme Court yearn for it to be an eroded branch of checks and balances that merely aligns with the interests of the majority party.

If Democrats were to gain control of the Supreme Court, another issue would arise: the destruction of democracy that judicial activism causes. Judicial activism in itself is a threat to checks and balances as Justices determine constitutionality on a whim with no objective basis.

If the number of Supreme Court Justices is modified, the United States government will have greater latitude to oppress the liberty of its citizens as power would be diminished in the judicial branch and expanded in the others. This would create an unbalanced, unchecked, and less restrained federal government that has a stronger ability to overreach its power. Additionally, checks and balances will be obliterated if even one Justice is added or removed. Consistency amongst powerful institutions merely amplifies their credibility and integrity. Although Congress has the authority to revamp the Supreme Court along with the president’s nominations for additional seats, it is necessary to consider credibility, rationale, the faith of the public, and the preservation of checks and balances. Modifying Justices to suit a particular purpose for the majority party at the moment will be deemed detrimental to the next party, requiring the Supreme Court to move with the demands of the political party in power.

 

Zander Pitrus is from San Diego, CA, studying Political Science.



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