Unpacking 'Court Packing'

Will a 'switch in time save nine' again? And what it might mean for immigration

By Andrew R. Arthur on October 23, 2020

In the run-up to Monday's scheduled vote on the nomination of Judge Amy Coney Barrett to become the ninth justice of the Supreme Court, so-called "court packing" — that is expanding the number of justices on the High Court to 10 or more — has become a hot-button political issue. It has serious implications for immigration, but possibly not as directly as you might think.

Some background. The Supreme Court is expressly provided for in Article III, section 1 of the Constitution. It states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

One thing you will notice that is not included in that section is any reference to the number of "judges" (now justices) that will sit on that Supreme Court. That number has varied over time from six to 10 (there were some shenanigans during the Civil War and Reconstruction), but in 1869, Congress set the number at nine, and there it has stayed.

Despite subsequent efforts to change it. In the 1930s, as then-President Franklin Roosevelt saw many of his New Deal programs fail at the Supreme Court (as in Schechter Poultry v. U.S.), the president pushed the Judicial Procedures Reform Bill of 1937. The idea was to allow Roosevelt to add an additional justice for each justice aged 70 years, six months, who had sat for 10 years or more (by my count, six at the time the bill was introduced).

Here is how FDR pitched it during a "fireside chat", broadcast nationally via radio in March 1937:

This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution "a system of living law." The court itself can best undo what the court has done.

Tell me if any or all of this sounds familiar. He also contended that the Court needed more than nine justices to handle its cases — a novel argument given the fact that the Supreme Court sets its own caseload.

Despite Roosevelt's powers of persuasion (and the fact that only 16 of the 96 senators then were Republicans), the plan never left the Senate Judiciary Committee, which made the following statement in its negative recommendation on the legislation in June 1937:

This bill is an invasion of judicial power such as has never before been attempted in this country. ... It is true that the size of the Supreme Court has been changed from time to time, but in every instance after the Adams Administration, save one, the changes were made for purely administrative purposes in aid of the Court, not to control it.

The acrimony toward Roosevelt's plan only got worse from there.

Nonetheless, when President Trump vowed to replace the late Justice Ruth Bader Ginsburg, some leading Democrats saw court packing as an idea whose time had come again. That said, both Joe Biden and his running mate, Sen. Kamala Harris (D-Calif.) have ducked the question of whether they are for adding additional justices, or against it.

Probably with good reason. In a September 24 Washington Post-ABC News poll, just 32 percent of respondents were in favor of adding additional justices to the Supreme Court, with 54 percent opposed.

Even with six Republican-appointed justices and three Democratic-appointed justices, it therefore seems unlikely that — assuming that Biden wins the presidency and Democrats hold the House and seize a majority of Senate seats — that the number of justices will be expanded. Any objective observer who complains about excesses of the Trump administration (and certainly those who support the president) would likely see any attempt at court packing the same way the Senate Judiciary Committee did in 1937.

But, as any first-year law student learns, FDR made his point and more-or-less got his way. As the Washington Post has noted:

The court saw its majority imperiled, and two justices began switching their votes to support New Deal legislation. "It's called 'the switch in time that saved nine,' " [Russell] Wheeler [a Supreme Court expert with the Brookings Institution] said. "They switched their approach to New Deal legislation, and that saved the idea of nine justices."

Want proof? Compare Schechter Poultry to the 1937 decision in NLRB v. Jones & Laughlin Steel Corp. (as I had to do when I was a first-year law student).

Which brings me to the current (and potentially soon-to-be) Supreme Court and immigration. Almost all of the Trump administration's immigration actions have been executive actions of one sort or another, and many have been enjoined at some step in the litigation process. As I have explained in parsing the two candidate's views on immigration, Biden vows to undo almost all — if not all — of them.

Just this week, the Supreme Court has agreed to take up two of the more controversial ones: Wolf v. Innovation Law Labs, involving the legality of the Migrant Protection Protocols ("MPP", or "Remain in Mexico"), under which third-country nationals who have entered illegally and claimed credible fear are sent back to Mexico to await their asylum hearings; and Trump v. Sierra Club, involving Department of Defense funding for border wall construction.

Biden has made clear that he plans on ending MPP in his first 100 days, and that he will not build any new barriers (but won't tear down the existing ones — at least that is his current position). So, if he is elected, those cases will likely be mooted out.

But there are plenty of other immigration issues out there. Texas and other states are currently suing to end DACA in U.S. District Court in Texas, for example. If Biden follows through with his campaign promises to all-but negate immigration enforcement, there will likely be other cases brought under the "Take Care" clause in the Constitution, as were raised with respect to President Obama's immigration initiatives. Simply put, immigration is going to come to the fore eventually.

The same is true of other hot-button issues, like Second Amendment rights, abortion, and Obamacare.

Could, once again, a "switch in time save nine"? I personally eschew any implication that justices tailor their decisions to fit their own personal agendas. But there is still truth in the statement that American humorist Finley Peter Dunne's character, Irish saloonkeeper Martin Dooley, made in 1901: "No matter whether th' Constitution follows th' flag or not, 'th Supreme Coort follows th' iliction returns." If anything, the threat of court packing makes that statement truer today than it was then. Or at least that is the apparent intent.

Chief Justice John Roberts, for one, is an institutionalist, which is to say (as the Financial Times has) that in his decisions he "is determined to wring institutional integrity and precise decision-making from Congress, the president and even his fellow judges." In my view, that includes protecting the independence of the third branch, and keeping it out of politics whenever possible.

He has certainly issued some interesting decisions that (in my mind at least) support that conclusion, specifically with respect to Obamacare and DACA. I am not alone in this conclusion with respect to the latter decision. As Justice Thomas (writing for himself and Justices Alito and Gorsuch) stated bluntly:

Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. ... Such timidity forsakes the Court's duty to apply the law according to neutral principles, and the ripple effects of the majority's error will be felt throughout our system of self-government.

Regardless — again, assuming a Democratic sweep — the threat of court packing will hang like nine swords of Damocles over the velvet-lined chamber in the Marble Palace.

The Supreme Court is a tempting target for the political branches: Obama attacked it directly (with six justices sitting in front of him) during his 2010 State of the Union address, and Trump publicly demanded that Justices Sotomayor and Ginsburg recuse themselves in cases in which he was involved on Twitter. They plainly were attempting to influence future decisions. The Court occasionally swings back (as Roberts did at Trump in November 2018), but such rebukes are notable for their rarity.

It is not just a tempting target for the executive. Would-be Senate Majority Leader Chuck Schumer, addressing a reproductive-rights rally on the steps of the Supreme Court in March, made direct threats to the two newest justices, stating: "I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

Again, Roberts felt compelled to respond, but whatever could Schumer have meant? He clarified his statements, sort of:

We will tell President Trump and Senate Republicans who have stacked the courts with right-wing ideologues that you're going to be gone in November, and you'll never be able to do what you're trying to do now ever, ever again. You hear that over there on the far right? You're gone in November.

Okay, but Supreme Court justices have lifetime tenure, so how would he respond once he had the reins of power? The ambiguity of the threat simply makes it more powerful, and "court packing" is simply that same threat dressed up in legal clothing.

In 1989, Bob Dylan wrote "[w]e live in a political world", a fact that is truer today than it has been since, well, Reconstruction. Or the New Deal. In that political world, immigration has become a polarizing issue — albeit one that has strangely not received much attention in the current campaign — and the Court will issue a ruling on it that politicians will not agree with.

The current Supreme Court has managed to thread the needle on the issue thus far — by irritating immigration advocates and those who support tighter restrictions in turn. But it is plainly in the crosshairs of those who believe that they will control the other two political branches come January. Court packing is not that popular now, but justices are human, as Dooley made clear, and they would likely want to keep it that way.