With the passing of Justice Ruth Bader Ginsberg, both Republicans and Democrats are scrambling to turn the Supreme Court in their favor. President Trump plans on announcing a new nominee this week, hoping to fill the vacancy before the election. Republicans in the Senate have been called out for supporting this measure since they had blocked a similar attempt by President Obama at the end of his second term in 2016.
If his nominee is approved, “conservative” judges would have a 6-3 majority. Barring any untimely circumstances, the next potential judges to retire would be Justice Breyer or Justice Thomas. While this is purely conjecture, if Trump is reelected he could solidify his 6-3 majority, or even expand it to a 7-2 majority for the foreseeable future. This would be especially concerning to Democrats as the Court has significantly increased its legislative purview over the past few decades.
To combat this threat, some Democrats have suggested packing the court (https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/20/915048049/if-republicans-confirm-new-justice-scholars-say-democratic-court-packing-is-poss). While both former vice president Joe Biden and current Speaker of the House Nancy Pelosi have denounced this effort, others within their party are more open to the idea. Senator Ed Markey (D-MA) said, "Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court."
The number of justices was originally established by Congress with the Judiciary Act of 1869. While this precedent has not changed in over 150 years, it was challenged by FDR in 1937. Facing challenges to his New Deal Programs, FDR introduced the Judicial Procedures Reform Bill of 1937. This bill would expand the president’s power, allowing him to appoint up to six additional judges, one for each judge over the age of 70 years and 6 months. A large number of both Republicans and Democrats opposed this bill including FDR’s own vice president. The bill ultimately died in the Senate Judiciary Committee before it could be voted on.
The Democrats will face an uphill battle if they hope to do this. Not only will they have to win back the Senate, but they will need large majorities in both houses if Biden isn’t elected. Even if he is elected and supports this decision, it could come back to bite them when Republicans retake the majority. While the likelihood of this ultimately happening isn’t great, it’s something to keep in mind as we draw nearer to November 3rd.
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