Perspectives on “Packing” the Court

Currently we find ourselves at a moment in history that seems equally daunting and divided. However, we can look back through our own record to consider how today’s issues of uncertainty were viewed in the past, thus rooting our perspective in an understanding of historical origins. One such issue, widely discussed today and likely for years to come, is the status of our federal courts in a system of checks-and-balances. Specifically of relevance  is whether the Supreme Court should be expanded from its current composition of nine justices.

An April 1937 article in Volume 5 of the UMKC Law Review, “The Federal Judiciary: An Analysis of Proposed Revisions”,considered how then-President Franklin Delano Roosevelt “undertook to coordinate and lead [an] attack on the judiciary” by presenting to Congress a reform package that would alter the character of the Supreme Court to uphold New Deal legislation. One of the proposals considered in the article was whether the president should “pack” the Supreme Court with more members, a tactic currently floated as a remedy to the perceived 6-3 split expected to frequent the Court’s decisions following the confirmation of a third Trump appointee, Judge Amy Coney Barrett, to the highest bench.

The article reminds today’s reader that, “It is clearly within the power of Congress to determine the number of federal judges, so the Supreme Court could be and has been expanded as Congress saw fit.” The author, though, takes on a somewhat skeptical tone about its effects, concluding that the partisan banter surrounding the debate could be mere political puffery. He argued the proposal may be neither “dreadfully dangerous nor certainly constructive” due to the anticipatory nature of arguments on both sides and the shifting perspectives of justices after their appointment. Three impartial points of view were presented in that issue of the UMKC Law Review to urge grounded consideration of the divisive “Court Packing” issue, which still prove to be relevant today:

• That the federal judiciary is America’s one great non-partisan governmental agency; to legislate a change in its composition is not only to establish a dangerous precedent but also to undermine the foundations of American checks and balances.
• That the Supreme Court has been and is packed, and that the present move is designed to merely “unpack” it.
• That [. . .] as long as the independence of judgment of the justices remains unimpaired, it is not possible to pack the courts with any assurance of unqualified success.

While this isn’t a conclusive answer about whether FDR’s proposal was right or wrong, it reflects a continued reality that an honest review of practical outcomes must shield the Court from political turbulence. As America re-ignites a debate on the merits of expanding our Supreme Court, it’s important to lean on academic writing to inform our research and analysis. Regardless of a legal conclusion, the underlying approach remains the same: steady temperament and scholarly insight are essential foundations to well-developed law.

Almost a lifetime after the 1937 article, a piece in the UMKC Law Review on the popular legitimacy of the Supreme Court can be interpreted to provide a contemporary bridge to today’s contentious perspectives on the judiciary. “Popular culture has not yet injured the legitimacy of the Court,” the author wrote in fall 2004. However, he continued to warn that “Popular culture . . . has a difficulty portraying such issues in an appropriate manner without distorting facts and arguments in an effort to entertain.”

Perhaps the concerns from both eras are now being realized, and perhaps resolution is still years away. But certainly the Law Review will continue to consider this and other legal issues with the balanced scholarly analysis that has made it a staple of our legal community for over 90 years.