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What does it mean to 'pack' the Supreme Court? Has it been done before?

Published on October 15, 2020 1:17 PM
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Democratic nominee Joe Biden and running mate Sen. Kamala Harris have faced growing pressure from Republicans to say whether they'd try to 'pack' the Supreme Court if Democrats were to win the White House and control of Congress in November, after both candidates have repeatedly dodged questions on the issue.

"You will know my opinion on court-packing when the election is over," Biden has said. "The moment I answer that question, the headline in every one of your papers will be about that rather than focussing on what's happening now. This election has begun. There's never been a court appointment once the election has begun."

The idea of adding more justices -- or what critics call "packing" the court to secure a desired majority -- is not unprecedented but has taken on new life with the death of Justice Ruth Bader Ginsburg and the Senate confirmation hearing for Judge Amy Coney Barrett.

Some Democrats -- including Senate Minority Leader Chuck Schumer -- and progressive groups have threatened to try to add justices to counter the effort by President Donald Trump and Senate Republicans to get Barrett confirmed before Election Day.

So, can a party in power really "pack" the court?

Yes, in theory. The Constitution does not set the number of justices on the Court. Congress can change the number by passing an act that is then signed by the president -- and the number of justices has changed in American history.

George Washington nominated the original six justices on Sept. 24, 1789, after Congress passed the Judiciary Act of 1789 establishing a Supreme Court. For the next eighty years, the number of seats shifted in order to give the ruling party more power.

In 1801, President John Adams and a Federalist Congress reduced the Court to ...