Supreme Court 101- What Does “Packing the Court” mean?

By Olivia Merrick

Following the death of women’s rights champion and Supreme Court Justice, Ruth Bader Ginsburg, talk of filling her now-vacant chair jumped to the top of the headlines. With Judge Amy Coney Barrett’s recent appointment as the ninth Supreme Court Justice, questions remain about what will happen next. The current leading theory in the Democratic party is that Presidential Candidate, Joe Biden, will pack the court if he becomes president. But what exactly does that mean?

Before diving into the idea of packing the court, it is important to understand the current structure of our Supreme Court, following Judge Barrett’s recent appointment. The court now consists of six conservative-leaning justices and three liberal-leaning justices. Judge Barrett has developed quite the reputation for her strictly conservative views, as well as her tendency to make religiously biased decisions. This means that since Judge Barrett was confirmed, the power in the Supreme Court will further lie in the hands of conservative-leaning justices and liberal-leaning justices now face a tougher battle than ever to get their opinions heard.

With that being said, it is easy to understand the fear that now plagues the hearts of liberals nationwide. There has been talk of overturning Roe v. Wade, which allows women to legally receive abortions, and of continuing to repeal LGBTQ+ rights, something the conservative justices now have the power to do, especially following Justice Barrett’s congirmation. 

And this is where the concept of “packing the court” comes into play. Nowhere in our Constitution does it state that the Supreme Court has to be limited to only nine justices. This means that if Joe Biden is elected as President, he will have the ability to fill the court with more liberal-minded judges.

In order for this to work, Biden would need to appoint a total of four, new, liberal-minded judges in order to make the Supreme Court seven to six, and give liberals the power of the court back. Franklin D. Roosevelt was the first president to ever suggest a variation of packing the court, in which for every justice over the age of 70, an additional justice would be added. FDR, a beloved American president, was faced with an overwhelming amount of backlash over this and the idea was quickly dropped, which highlights exactly why Biden hasn’t made a promise to pack the court, or to leave it at nine justices.

  And the concept of changing the number of Supreme Court Justices, while not unconstitutional, is most certainly just what moderates, and even conservatives, fear most: radically leftist, as many conservatives view the nine justices as unchangeable, whereas liberals see it as a progressive update to the courts. In an effort to continue to pull in more middle, and even right wing, voters, Biden has to be careful, and will likely not give a definitive answer about packing the court if he is to win. His choice to do so will hopefully retain moderate voters, as he won’t have to worry about losing their votes out of fear of liberals gaining power over the court. 

While packing the court is certainly an unfamiliar idea to many, and does go against the traditional nine justices, it is anything but illegal. Now that Justice Barrett has been confirmed, the likelihood of a more definitive answer from the Biden administration will increase. But for now, it’s only a concept, though one that could easily become reality.