At the presidential and vice presidential debates, Donald Trump and Mike Pence asked their opponents the same question: Will you pack the courts?
The symmetry of their approach shows they believe a focus on "court packing" could turn their ailing campaign around. And they got a quick assist from media outlets who began hammering the Biden campaign about the issue.
But "court packing" — as both a phrase and a historical precedent — obscures more than it reveals about the current debate over the size of the Supreme Court. That's because the parallel to President Franklin Roosevelt's efforts to change the court's size don't fit the current situation, and the broader history of court expansion bolsters the case for expanding the court now.
Expansion of the court rests in the hands of Congress, a right it has exercised several times in the nation's history. Rather than being "illicit" or "tyranny," as conservative critics have charged, it is an ordinary power of Congress granted by the Constitution. Over the course of the 19th century, the court fluctuated from five to 10 members, ultimately settling at nine. In many cases, the changes reflected fluctuations in the number of federal court districts. When districts were added or removed, the number of seats on the court changed with them. (For the record, there are currently 13 federal districts.)
Mixed in with these relatively neutral changes were more politically motivated ones. In fact, the first change to the Supreme Court came as part of the "midnight judges" scandal of 1801, when Federalists doubled the number of district judges and shrank the size of the Supreme Court from six to five after they lost the election of 1800, hoping to install as many as their allies as possible before Thomas Jefferson became president.
Because this was an act of Congress, Jefferson's legislative allies were able to simply repeal the law in 1802, bumping the Supreme Court back up to six seats.
And then, of course, there was the famous attempt to pack the court in 1937. Franklin Roosevelt, irritated that a conservative court kept striking down legislation aimed at reviving the economy during the Great Depression, proposed adding a slew of new justices under the guise of court reform. The effort technically failed — Congress never passed the legislation — though the court became more amenable to New Deal legislation in the sessions that followed.
In the case of both Adams and Roosevelt, the system broadly worked to check political power grabs. Congress rectified the court's size in 1802 and rejected its expansion in 1937.
Today, the situation is quite different. First, the call for a change to the court's size is not a response to specific rulings that Democrats disagree with. There were few widespread calls for an expanded court following the decisions in District of Columbia v. Heller, which vastly expanded gun-ownership rights, Shelby Co. v. Holder, which gutted the Voting Rights Act, or even Citizens United v. FEC, a ruling so universally reviled by voters that a 2010 Washington Post-ABC News poll found even 76% of Republicans disagreed with it (85% of Democrats and 81% of independents did, too — though many Republican officeholders welcomed the influx of money into campaigns).
What's really driving the renewed interest in court expansion is something else: the politicized change in the size of the court has already happened. It occurred in 2016, when a Republican-controlled Senate allowed the court to shrink to eight justices. Not only did the Senate fail to fulfill its constitutional duty to vote on the president's nominee, some Senate Republicans were prepared to keep the court at eight if Hillary Clinton won the 2016 election. Sen. Ted Cruz and the late Sen. John McCain both floated that possibility in October 2016, with Cruz musing, "There is certainly long historical precedent for a Supreme Court with fewer justices."
The refusal to even hold a hearing for a presidential nominee was more than a norm violation — it was an abdication of constitutional responsibility. And because it was one that worked out well for Republicans, there has been no reckoning.
Until now. The Biden campaign has not yet weighed in on expanding the court, but there is a groundswell of support for it from Democrats who believe it is the only way to remedy what happened in 2016. That makes a more accurate precedent for the court-expansion debate not the 1937 attempt, but 1802, when Congress returned the court to six seats after Adams attempted to take a seat from Jefferson and pack the lower courts with his allies.
These historical precedents help put the current debate in a more accurate context than blanket condemnations of "court packing." But they should not be thought of as straightjackets constraining the bounds of debate. Historical precedent can serve as a guide to how people have considered these issues in the past, but they are not an excuse to ignore the unique conditions of the current crisis: The Republicans' smash-and-grab approach to judicial nominations threatens the independence and legitimacy of the judiciary and weakens the rule of law.
Should Democrats win the election, they will have to fix this, too. That likely means court expansion, but also a raft of judicial reforms ranging from Supreme Court term limits to narrowing its jurisdiction. It likely means coming to terms with a reality most Americans have never really confronted: The court has never been apolitical, and even with reforms, there will be fights over its composition and power — fights Democrats must be willing to take up.