What is the mechanism required to add new justices? First the president needs to want to do this of course or its going no where. Like how many senators are required and is it even possible for the democrats to get enough to do so? It seems like the republicans could have already done so since they have the presently and a majority in the Senate. It doesn’t seem to me to be an easy thing to do so I’m confused as to why it is considered a big deal that Biden even entertain the idea. What am I missing other than the republicans using this as a scare tactic because they go nothing else?
It would have to be an act of congress. So the GOP couldn’t do it right now, but there’s a chance the Dems sweep things and would be able to in 2021. Realistically, if the Dems have about 52 senators (which seems like a realistic scenario) they probably won’t be able to herd the cats together and actually get it done.
So the Dems could have done this after Obama was elected and it wasn’t brought up as an issue. They choose to fight for the ACA instead and still didn’t get what they wanted. Have the republicans had both the executive and legislative branch’s recently and not proposed packing the court?
Yes, generally it isn’t that hard to do.
The court up until Anthony Kennedy retired had 4 solid conservatives, 4 solid liberals and a right-leaning swing vote. So the GOP had very little incentive to pack it and the strategic value of packing it for the Dems was much less than it is now (even ignoring the idea of trying to correct the court due to the Merrick Garland situation).
Also, packing the court to prevent an ACA decision probably wouldn’t be the best idea. The conventional wisdom is that once one side packs the court, it ceases being a taboo and just becomes something each party will do when they get the chance. The problem with that is healthcare policy can’t just swing back and fourth every few years - you end up with tons of people losing insurance and when it gets reinstated it would take years to build back the infrastructure. Even the GOP knew this which is part of the reason they haven’t actually been able to repeal the ACA with legislation.
The republicans could have done it in 2017.
But, they already had a conservative majority on SCOTUS.
Packing the courts at that point would have been a pointless partisan over-reach. Especially after their gamesmanship with Garland, turning around and trying to add even more justices at that time would have been too much for most of their supporters.
In 2009, it is possible that they could have added justices, but the Democrats had no intention of doing so.
As it was, given the filibuster at the time, they were barely able to pass ACA. They only had a couple months with a filibuster proof majority, and many of those Democrats would probably not have been too keen on the idea had it been broached.
There’s a strong element of tradition there and not wanting the SCotUS to appear political. So you probably wouldn’t have had majority support for doing it even setting aside the filibuster. That’s largely off the table at this point as McConnell has smashed tradition to load the SCotUS with blatantly political choices. At this point, “packing” the court could be framed as reforming a broken process and restoring some sort of impartiality.
Technically, you only need to control both houses of Congress and the presidency to pack the Court. But in practice you’d see a significant number of Democratic or Republican Congressmen who would balk. That’s why neither party has seriously tried it in modern times, despite there having been plenty of times (such as 2000-2006 or 2008-2010 or 2016-2018) when one party did indeed control all three political levers.
Anyone who claims Democrats packing the Supreme Court would be a slam dunk is totally underestimating the defector factor. A sizable minority of Democrats would likely oppose it, especially centrists or red-state D’s.
Packing the court is likely a short-term solution. Because there’s nothing to stop the opposition party from adding more judges when they get back in power.
Passing social safety net legislation is generally very sticky. People generally really like it and it’s hard to repeal.
And of course at the time it wasn’t clear that they wouldn’t get a reasonable compromise with the ACA. The political landscape changes and Obama’s presidency was arguably an inflection point in partisanship.
It depends on what SCOTUS does.
If the Democrats win a solid majority in both houses, and the presidency, and start passing legislation that has strong Democratic support, and SCOTUS starts overturning that legislation, then there is going to be be far more interest in doing so.
We aren’t going to pack the courts on a whim, we would only do so if it becomes clear that SCOTUS has become a partisan arm of the GOP and their desire to obstruct the functioning of the government.
But if a new ACA passes with overwhelming democratic support, and it gets shot down by SCOTUS, then the Democrats are going to have to take some sort of action against that.
Congress should reorganize the supreme court to work more similarly to the circuit courts. Cases would first go to a three-judge panel (maybe increase to five judges), determined by lot, before the possibility for an en-banc hearing. The supreme court should only rarely sit en banc.
The maximum size of the supreme court should be one more than the largest circuit court. That is, associate justices equal to the largest, plus the chief justice. Currently the Ninth has 29, which is way too big. Let’s assume it’s split as part of the reform (can probably get some Republican support by doing so), and the Fifth is the new largest with 17. That’d give 18 justices on the supreme court.
Maybe they could limit or redefine (or actually define) some of the presidential powers while they are at it. Perhaps that should be part of an answer to the question of packing the court.