The Case Against Court Packing

Walter Shapiro

Brennan Center For Justice

Walter Shapiro of the Brennan Center for Justice made the following arguments against 21st-century court packing: It is dangerous to tamper with the mechanisms of democracy to thwart a single political figure–in this case Mitch McConnell. Shapiro argues that because times change power eventually ebbs. Restructuring the Supreme Court will have lasting repercussions long after the current crisis is forgotten. Shapiro pointed out that ultimately the 1930’s Franklin Roosevelt liberal appointees overturned conservative decisions in his second term.

The Brennan Center for Justice at New York University Law School is a bipartisan law and public policy institute that is sometimes seen as liberal or progressive. It is named after Supreme Court Justice William J. Brennan.

Shapiro recognized that Democrats are openly discussing term limits for Supreme Court Justices, increasing the number of justices on the court and other reforms to thwart the conservative judicial vision. All of these actions would reduce the independence of the Supreme Court, and therefore weaken the balance of power between our three branches of government–the Executive, the Legislative Branch, and the Judiciary.

While it is true that since we ratified our Constitution the number of justices has varied, the Supreme Court has had 9 justices since 1869, when our population was about 35 million people.

Shapiro pointed out that FDR’s attempt to pack the court is a case study of how even a popular president can fall victim to the arrogance of power and over-extend one’s political mandates.

Shapiro is very critical of President Donald Trump and Senate Majority Leader Mitch McConnell because these men are shredding the norms of democracy on almost a daily basis.

However, the remedy is not packing the Supreme Court. Shapiro argues that in a functional democracy, structural problems often solve themselves. Shapiro expresses the concern that packing the court seems like a banana-republic attempt to change the rules in the middle of the game. Shapiro believes that any hope to restore a less politicized judiciary after Trump leaves office, it will not be achieved by imitating McConnell’s bully tactics.