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Is It Possible To Expand The Supreme Court?

MARY LOUISE KELLY, HOST:

After news broke of Supreme Court Justice Ruth Bader Ginsburg's death, the political maneuvering started pretty much immediately. One idea some Democrats are talking about - packing the court. Here's what that means. If Republicans fill Ginsburg's seat before the election and if Democratic candidate Joe Biden wins the election and Democrats turn over the Senate, then Congress could theoretically change the law. Add justices to the Supreme Court. Pack it with Biden appointees, so liberals are in the majority. That current number, nine justices, is not actually mandated in the Constitution. Well, here to talk with us about this is Judge Glock, who dug into the history for Politico magazine.

Hey there.

JUDGE GLOCK: Thank you so much for having me.

KELLY: So let's start with the history because there is precedent here. FDR - President Roosevelt - had a plan to pack the court. Why did he want to do it, and what happened?

GLOCK: Yeah, so it was a similar issue in that he was concerned about the conservative bent of the court and he wanted to, as many at the time saw, add more justices to push it into a more liberal direction. But the other concern he has was that there hadn't been any retirements for a long time in the court. And he presented this original plan actually not so much as a way to add justices to the court as to kind of push the older justices, specifically those over 70, to leave.

KELLY: We've actually got a little bit of tape. We can hear FDR. This is him pitching his plan in one of his fireside chats, 1937.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT FRANKLIN DELANO ROOSEVELT: This plan will save our national constitution from hardening of the judicial arteries.

GLOCK: When the fight went on and the purely political nature of it was made clear, the arguments about encouraging them to retire or merely getting new justice on the bench for the older justice kind of carried less weight.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: I will appoint justices who will act as justices and not as legislators.

GLOCK: And that's when a lot of his own party began to turn against him.

KELLY: Well, I mean, the concern that some of FDR's his opponents raised are being raised today - that this would further politicize a court, that this would turn the Supreme Court into a partisan body.

GLOCK: Well, exactly. One of the criticisms was that if they did it, what was going to stop them four years later from - the Republicans from doing the exact same thing? Exactly because there is no limit on the number of justice on the bench in the Constitution, it's potentially bottomless exercise.

KELLY: Well, I will note for those listening who might still be in suspense, FDR did not succeed in adding additional justices. I also want to note that Joe Biden has has gone on record and said he would not get into court packing - a direct quote from Biden there from a debate last year.

GLOCK: But how hard would it be? If they controlled both houses of Congress, it could pass just like an absolutely normal law, no different from a, really, farm appropriations bill. The main barrier to that would be public opposition. And FDR was surprised at the amount of just raw public feeling that went into the Supreme Court in 1937 when he proposed it. And as you look today, the Supreme Court remains one of our more respected institutions. It polls much better, usually, than the presidency or the Congress.

KELLY: One more voice to draw into our conversation, which is Ruth Bader Ginsburg herself. She actually weighed in on the idea of court packing in an interview with NPR's Nina Totenberg last year.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

RUTH BADER GINSBURG: Well, if anything would make the court appear partisan, it would be that - one side saying, when we're in power, we're going to enlarge the number of judges, so we will have more people who will vote the way you want them to.

KELLY: So how - I mean, how real a possibility do you think this is? Or is this a lot of talk at this point?

GLOCK: Some people like Sen. Schumer and Sen. Markey have said they support or at least...

KELLY: Two Democratic senators.

GLOCK: ...Would support potentially having anything on the table. I think in reality, it is a lot of talk to try to influence both parties kind of back down at this point, as long as a lot of the own party probably doesn't want to trot down the same path that Roosevelt did in '37, which really fractured the Democratic coalition, almost permanently, for the next 30 years. People with longer memories remember how devastating that fight was for the Democratic Party.

KELLY: That is Judge Glock, senior policy adviser for The Cicero Institute, which is a nonpartisan think tank.

Thank you very much.

GLOCK: Thank you so much. Transcript provided by NPR, Copyright NPR.