House and Senate Democrats are poised to introduce legislation to expand the number of justices on the Supreme Court so President Biden can add several of his own picks — a practice known as court-packing — but the late liberal icon Justice Ruth Bader Ginsburg once firmly came out against the idea.
In a 2019 interview with NPR, Ginsburg addressed the idea that has gained momentum among Democrats in recent years.
“I have heard that there are some people on the Democratic side who would like to increase the number of judges,” Ginsburg said. “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court.”
Roosevelt’s plan, she recalled, was for a president to be able to add a justice for every one on the court who stayed beyond the age of 70, which would have allowed him to immediately add six, bringing the roster to 15.
Ginsburg had noted that with no set number in the Constitution, the court has had as few as five and as many as 10 justices.
“Nine seems to be a good number, and it’s been that way for a long time,” she observed.
Ginsburg explained that expanding the Supreme Court so a president could load the bench with like-minded jurists would politicize the high court and erode its independence.
“If anything would make the court appear partisan it would be that,” she said. “One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to. So I am not at all in favor of that solution to what I see as a temporary situation.”
Justice Stephen Breyer, one of the current liberals on the Supreme Court, also argued against court-packing when addressing Harvard Law School earlier this month.
“What I’m trying to do is to make those whose instincts may favor important structural change or other similar institutional changes such as forms of court-packing to think long and hard before they embody those changes in law,” Breyer said.
Breyer cautioned that such a move could damage the public’s trust in the court., which “is guided by legal principle, not politics.”
“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” he said.