With the confirmation of Supreme Court Justice Amy Coney Barrett on Oct. 26, conservatives now hold a 6-3 advantage over liberals in the court. This dilemma has sparked interest in court-packing, or increasing the number of justices in the U.S. Supreme Court above the current total of nine. However, packing the court should be avoided because it inflames division, distracts from COVID-19 and is not a long term solution.
During his four years in office, President Donald Trump nominated three Supreme Court justices. With Barrett’s confirmation after the passing of Justice Ruth Bader Ginsburg in September, Democrats are worried that issues from Roe v. Wade to the Affordable Care Act will be threatened. The fear that a court that might not favor Democrats has fueled their support for court-packing, to balance out their disadvantage.
First, Democrats must consider that adding Supreme Court justices may not even be an option. Each justice has to be appointed by the sitting president and confirmed by a simple majority of the Senate. While President-elect Joe Biden has been called the winner of the 2020 election by a range of news sources, including NPR, Fox News and CNN, the Senate is still undecided. With two out of the 35 Senate seats not yet announced, Republicans hold the Senate with a 50-48 lead. Even if Democrats Raphael Warnock and Jon Ossoff can beat Republican incumbents Kelly Loeffler and David Perdue in the Georgia runoff elections, the Senate will be tied between Democrats and Republicans. The equal ratio could mean negative things for the confirmation of a liberal nominee, and depending on the outcome of the two runoffs, Democrats might not have the votes to confirm a justice.
Even if Democrats are able to gain control of the Senate, adding Supreme Court justices is a controversial idea on both sides of the aisle. A New York Times survey from July found that only 19% of Republicans and 30% of Democrats supported court-packing. Given the divide between U.S. citizens on the idea, Biden trying to add a justice would only increase this division.
Controversy around the idea of court-packing could cause the process to take weeks or months of valuable time that should be used to address more pressing issues such as the pandemic. The U.S. recently surpassed over 250,000 COVID-19 deaths and is setting new records for the number of daily new infections, according to CNN. Additionally, the Bureau of Labor Statistics found that about 11 million people were still unemployed in the U.S. during the month of October. Without a Congress fight about a justice approval, government officials could spend much needed time on passing additional relief for the unemployed, ensuring criminal justice reform and creating regulations to tackle COVID-19.
Finally, packing the court now is not a sustainable option as it sets a precedent for court-packing to be a solution to every partisan problem. If Democrats argue that it is justified to add more Supreme Court justices when they control the presidency and Senate, there is no stopping Republicans from claiming the same right if they win the presidency and Senate in years to come.
While Democrats are worried about the issue of their 6-3 ratio of Republican to Democrat justices on the court, packing the court would stoke division, distract from urgent issues and not even create a sustainable option to address the Democrats’ concern. We need to be able to set aside our partisan issues, such as the Supreme Court, and focus on unifying around combating pressing challenges.