IS COURT-PACKING UNJUST?
Key Facts
“Court-packing” involves any practice of trying to manipulate the membership of the Supreme Court for partisan ends. This could be accomplished by increasing the number of Justices that could be appointed to the Supreme Court, which would allow the current President to fill such vacancies. [1]
On April 9, 2021, Joe Biden issued an executive order to establish a commission studying the Supreme Court of the United States. [2] This new commission will examine things such as “the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.” [3]
A majority of Americans oppose court-packing. [4]
Key Scriptures
Deuteronomy 16:18-20 “You shall appoint judges and officers in all your towns that the LORD your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land that the LORD your God is giving you.”
Exodus 23:2 “You shall not fall in with the many to do evil, nor shall you bear witness in a lawsuit, siding with the many, so as to pervert justice.”
Proverbs 29:4 “By justice a king builds up the land, but he who exacts gifts tears it down.”
Proverbs 16:12 “It is an abomination to kings to do evil, for the throne is established by righteousness.”
Want to Know More?
White House - Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the United States
Maryland State Bar Association - Packing (And Unpacking) the U.S. Supreme Court: A Brief History
USA Today - 'Think long and hard': Supreme Court Justice Stephen Breyer pushes back on 'court-packing'
CNN - Opinion: What packing the Supreme Court would really do
The Constitution Center - Packing the Supreme Court explained
Application
Recently, Joe Biden signed an executive order establishing a Presidential Commission on the Supreme Court of the United States. The commission will examine the role of the Supreme Court and various changes to the Judicial Branch. At the top of the list of reforms is to increase the number of justices on the Supreme Court. This is often called court-packing, especially when changing the number of justices is done for political purposes. How should the Bible inform our view of court-packing?
History of Court-Packing
Court-packing is nothing new in American history. The size of the Supreme Court has changed numerous times since our nation’s founding. Article III, Section 1 of our Constitution 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 number of federal courts, as well as the number of people who serve on those courts, are unspecified, leaving it to Congress to define these parameters. Thus, at different times, political factions have sought to increase the number of seats on the Supreme Court to give the current President the ability to appoint more justices or decrease the number of justices to keep the President from filling them.
The number of Supreme Court justices started at 6 when it was established by the Judiciary Act of 1789 and fluctuated between 5 and 10 justices until 1869, where the number was settled on 9. Since then, the only serious attempt to change the number of justices was done by Franklin Delano Roosevelt in 1937 after the Supreme Court struck down several measures of his New Deal legislation. His court-packing efforts ultimately failed, and so we still have 9 justices serving on the Supreme Court.
What Does the Bible Say?
Ancient Israel nor the early Church faced the prospect of court-packing as they existed under very different political circumstances than we do today. Because of these differences, it is unsurprising that the Bible does not address it. Nevertheless, Scripture does tell us that our civil leaders, including judges, need to uphold justice and righteousness (Deuteronomy 16:18-20, Psalm 72:1-2, Proverbs 16:12, 29:4). Therefore, whether or not Christians should support such measures is a question of wisdom and discernment and whether court-packing upholds these principles.
Does Court-Packing Uphold Justice?
To answer this question, two key concerns need to be addressed: First, what was the intent behind the Judicial Branch in our system of government? Second, what are legitimate and illegitimate reasons for changing the number of seats on the Supreme Court?
Federalist No.78 of the Federalist Papers is an important document that discusses the intent of the judiciary. In it, Alexander Hamilton writes that the judiciary was designed to be the “weakest of the three departments of power.” This was because it did not have the power of the sword (like the executive branch) or the purse (like the legislative branch), and so had “neither Force nor Will, but merely judgment.” If the court were to adopt legislative or executive roles, liberty could be endangered. Thus, the judiciary was designed to be the least political of all the branches of government. The American people have relied on the Supreme Court’s independence from politics as a crucial final voice for many political disputes regarding the Constitution, the rights of the people, and the power of government. Therefore, any measure which would threaten the Supreme Court’s political independence would also threaten the structure of our government and the justice it serves to uphold.
To the second question, what are the reasons to change the number of Supreme Court justices? Traditionally, there have been three reasons why someone would want to change the number of seats on the Supreme Court:
Historically, one reason was to accommodate the increasing number of federal district courts. As the United States grew in population and territory, it was necessary to add more district courts to handle the increasing case load. Congress also required some of the Supreme Court justices to travel to these various districts (called circuits). Hence, the number of justices needed could grow depending on the number of circuits. However, “circuit courts” like these that require the Supreme Court justices to travel have been abolished for over 100 years.
Today, one reason for potentially increasing the number of justices is to accommodate the increased workload. The Supreme Court only hears about 100-150 cases of the more than 7000+ brought to it every year. Therefore, some have argued that more judges are needed so that they can hear more cases.
The final reason is purely political. If one party fears that the Supreme Court will hand down rulings unfavorable to their agenda, then it could seek to expand the court and appoint judges who are more likely to rule in their favor. Partisan reasons like this should be avoided as they threaten the Court’s political independence and its ability to act as objective interpreters of the Constitution and the law. Packing the court in this way could threaten justice, the rights of the American people, and the trust that they have placed in our government.
Conclusion
While there could be legitimate reasons to increase the number of justices on the Supreme Court, it seems more likely (in this author’s judgment) that recent pushes to expand the number of Supreme Court justices are more driven by partisan politics than by necessity. While the Bible does not address this issue, wisdom would lead us to conclude that changing the number of justices for partisan reasons will threaten the independence of the Supreme Court and make its judgments seem less trustworthy to the American people. Packing the court will only harm our judicial system and the justice that it serves to uphold in our nation.
