As Republicans ram through Trump’s third Supreme Court nomination with an election underway, Democrats are increasingly contemplating expanding the court. But rather than cover it with the “objectivity” they claim to strive for, the country’s dominant media outlets have adopted a right-wing frame of the issue—calling it “court packing”—that delegitimizes court expansion.
New York Times (9/19/20): Democrats call expanding the court “a defensive move,” while Republicans call it “radical and undemocratic.”
“Ruth Bader Ginsburg’s Death Revives Talk of Court Packing,” announced a New York Times headline (9/19/20). “What Is Court Packing, and Why Are Some Democrats Seriously Considering It?” asked the Washington Post (10/8/20). In that piece, the Post‘s Amber Phillips explicitly acknowledged the bias inherent in the phrase, yet presented it as practically official:
Expanding the Supreme Court to more than nine seats sounds like a radical idea, and the term for it, “court packing,” sounds derisive because it has created controversy every time it has come up.
In typical corporate media style, such articles often present the issue as a he said/she said dispute. In the WaPo piece, Democrats are “frustrated that the Supreme Court could get even more conservative,” while Republicans “paint that as sour grapes”; over at the Times, Democrats “characterize court expansion as a defensive move against Republican actions, not a unilateral power grab,” while Republicans “have called the idea radical and undemocratic.”
In these formulations, one side must win and the other lose. But the reality they gloss over is that those aren’t the real teams here. The struggle over the Court is at heart a struggle between anti-democratic forces and the interests of the vast majority of people in this country.
In recent years, massive amounts of corporate money have been directed toward efforts, led by the right-wing Federalist Society, to capture the US courts for corporate interests—dismantling voting rights, favoring corporate rights over individual rights, and stripping the power of government to regulate corporations (CounterSpin, 10/16/20). By framing the issue as one of Republicans vs. Democrats, media ignore the more important threat to democracy as a whole. And by accepting “court packing” as “the term for” expanding the court, journalists lend a hand to those anti-democratic forces.
The phrase “court packing” isn’t new. President Franklin D. Roosevelt’s opponents coined it to delegitimize his plan to expand the court after it repeatedly struck down parts of his New Deal in the name of restraining government power (federal and—in some cases, like the court’s rejection of New York’s effort to set a minimum wage for women—state). In the end, FDR’s plan languished in the Senate, but the president won the war; in the wake of his public campaign against it, the court began issuing rulings more favorable to the New Deal and other economic recovery plans. One of the conservative justices retired, giving FDR the opportunity to swing the balance back in his favor—no thanks to the media, which ran predominantly unfavorable stories about FDR’s plan.
The circumstances are different this time around, with Republicans on the verge of installing a 6–3 conservative majority, and none of the conservative seats likely to open under a Biden term; the oldest conservative justice, Clarence Thomas, is just 72, and hasn’t given any indication that he’s interested in retiring. Plus, it’s unlikely Biden would push forcefully for a court expansion the way FDR did, putting pressure on the court to temper its rulings. But the rampant journalistic use of the biased term “court packing” hasn’t changed.
A Nexis search of US newspapers for the past three months (7/24/20–10/24/20) turns up 244 headlines with some version of the phrase “court packing” (including, e.g., “pack the court” or “packing the court”). Less than half as many, 98, used a version of the more neutral “court expansion” (such as “expanding the court”), and almost half of those (48) also used the phrase “court packing” within the article.
It’s also noteworthy what that these “court packing” stories highlight—and ignore. In arguments about court expansion, the right tends to focus on ideas of tradition (like the false claim that adding justices would be unprecedented) and the culture wars (like Roe v. Wade). Democrats often lean on the Republican hypocrisy of blocking Obama’s nomination of Merrick Garland to fill Antonin Scalia’s seat in 2016, when the GOP insisted, eight months before an election, that the voters should have a chance to weigh in before a new justice was confirmed—a principle instantly abandoned when Ruth Bader Ginsburg died seven weeks before an election.
The role of corporate money and the Federalist Society, and the threats they pose to democracy, often go unmentioned by both sides. In the last three months, newspaper stories that mentioned “court packing” also mentioned Merrick Garland 358 times and abortion 337 times; Roe v. Wade made 159 appearances. But these stories mentioned the Federalist Society only 33 times; of those, only seven mentioned “corporate” or “corporation.”
Abraham Lincoln (quoted in Jacobin, 9/19/20): “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. . . the people will have ceased to be their own rulers.”
In the end, it’s unlikely that even if—and it’s a big if—Democrats take the presidency and the Senate, there will be enough agreement within the party to expand the Supreme Court. But that’s also not the only way to counter the corporate takeover of the court. In the face of an intransigent pro-slavery court, Lincoln and his anti-slavery allies recognized that their most powerful and effective strategy was not to try to add enough justices to gain the upper hand within the court; it was to undermine the false image of an impartial, democracy-protecting court that must always have the last word. As Matt Karp writes in Jacobin (9/19/20):
Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery court through popular antislavery mobilization. “We do not propose to be bound by [Dred Scott] as a political rule,” he said. “We propose resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.”
Others have advocated for a similar approach today: marginalizing rather than trying to capture the court (e.g., New Republic, 10/13/20). Neither task would be easy, but getting journalists to talk more directly about the true problems with the court is a critical step along the way.
Featured image: Anti-FDR cartoon from the Waterbury Republican (2/14/1937).
The Dems’ contemplated action would not be ‘packing’ anything. It would be REBALANCING.
As cognitive linguist George Lakoff might say, “rebalancing” contains within in it a frame — the clear meaning that (a) the US Supreme Court previously had been balanced, (b) someone or something threw it off-balance, but (c) balance is desirable and (d) needs to be RESTORED.
It’s also clear that Trump and his far-right GOP are together what threw the Court off-balance. They stole that balance from it.
Also within this frame of meaning: because balance is desirable, it’s WORTH restoring. In fact this balance is extremely desirable and therefore restoration is worth extreme effort.
A corollary: by restoring balance to this branch of government, Dems will be doing their Constitutional duty.
A lot of folks might go further. They’d say this balance is vital to our nation, we must restore it at any cost, and thus Dems would be committing the ultimate betrayal by not doing it. A dereliction of duty.
All this meaning is coiled up inside the single word “rebalance”. It’s like a grenade. Every time we lob it, we explode the old “court packing” frame.
I urge everyone inside and outside the media to use this term “rebalance” and its sister term “restore” — so it becomes not just accepted but automatic. As the GOP knows, repetition creates its own reality.
Per Lakoff, historically the GOP has done a good job of putting cognitive linguistics to work for them. Dems and progressives, not so much.
That must change. It’s urgent. So let’s get it right and do it now. Let’s REBALANCE the US Supreme Court — restoring the vital balance on which our democracy depends.
adding justices to achieve a desired political outcome is “packing”.
to “Restore the court we would need to reduce the number of justices down to the original number that were put into place by the founders.
funny how you want to use words that do not accurately describe the situation into order to spin your partisan propaganda. Gobbels would proud.
The founders didn’t specify a number of justices. The current 9-member tradition wasn’t established until 1869.
Yes John, we all know the history.
Ira, how do you propose to have a balanced court with an odd number of people? Do you propose 5-5?. Do you propose that if a conservative justice dies while a Democrat president is in the White House that that president find a truly conservative justice?
When someone out there is saying the founders declared a set number of justices, then we obviously don’t ALL know the history.
Apparently David didn’t – or didn’t you read his comment?
Looking at it from a Constitutional perspective, the sitting President and the Senate have the power to staff the court(s) however they like. As has been pointed out to you, there was never a set limit so it would be entirely within the powers granted to a Democratic President and Senate to put as many justices as they want on the bench at the SCOTUS. Same applies for Republicans.
But the nattering namby pamby about how this would be a “partisan” push by Democrats is laughable when you look at the history of right-wing partisan decisions handed down by the court including those like Bush v. Gore which were explicitly partisan and designed to ensure that a Republican had the power to nominate any new justices for at least the next 4 years. It is highly likely that a similar scenario will unfold this year – with Trump losing the popular vote and Electoral College but being put into power by the partisan SCOTUS through any number of ways, including halting recounts (thus unjustifiably handing the EC to Trump as it did to Bush).
The right has been yammering about “left wing activist” judges for decades, but when you look at the actual historical record, it is the right that has employed partisan politics and dirty tricks (not to mention the usual hypocrisy that manifested just yesterday in the election MONTH confirmation of ACB despite the Merrick Garland “precedent”).
Hence, I find your hand wringing laughable and nothing more than transparent partisan whining.
Dems will posture on cases involving reproductive or LGBTQ rights, but their donors are immensely pleased with the court’s direction on corporate rights, and thus you have the spectacle of Schumer and ilk rolling over for McConnell’s actual “packing” of the federal judiciary at every level.
Actually didn’t Lincoln do BOTH – ignore the Court’s supremacy AND add one Justice to make the total 9 – one for each Circuit Court.
We now have 13 Circuits – so it’s reasonable to use the Lincoln Precedent to add 4 more Justices, flip it from 6-3 to 7-6 (sometimes 8-5) AND to pass legislation in Congress to limit the power of the Court to overturn the Popular Will.
Especially if we can force Congress to PASS legislation reflecting the Popular Will…
So let mob rule and popular will trample the rights of minorities?
Have you considered moving to a communist nation?
Conservatives have always been in favor of minority rule. Equating the employment of constitutionally granted powers to build the courts to the liking of the President and Senate to “mob rule” is just ridiculous partisan whining.
Besides, nothing you just wrote comes close to addressing anything in Chetdude’s comment. It was just random conservative blathering.
Yeah, that whole “Popular Will” thing is great if you are a straight, white male.
It’s a bad idea. 13, 17, 25, … with each escalation the composition of the court becomes a joke. I’d rather have term limits.
Chetdude, that’s an interesting argument. At least there is a rhyme and reason behind the number and it isn’t totally arbitrary. As I recall, a Justice reviews Circuit Court appeals to see if they should be heard by the Supreme Court. I still find the idea of a super large court distasteful but I’d give your argument a second look.
This article hits it out if the park and desperately needs wide circulation.
There are no problems with an apolitical court ruling based upon the Constitution rather than legislating from the bench as far left pundits like this author would encourage. Expanding a court so that you can add justices that will rule in a way that you would like is indeed court packing. calling it “expansion” is dishonest as it fails to tell the whole story. Yes the court is “expanded” but why? is the motivation political? if yes, then we are “packing” the court to achieve a desired outcome. Words matter. If you want to encourage journalists to tell half truths, seek out a new profession.
Of course the motive is political. And it sure seems like it’s a fair retort for the GOP preventing the confirmation of Garland and then hypocritically forcing through the confirmation of Coney Barrett.
If the GOP doesn’t like it, perhaps they shouldn’t have started playing this game.
“The struggle over the Court is at heart a struggle between anti-democratic forces and the interests of the vast majority of people in this country.”
Ridiculous. If liberals want courts to reflect their values they need to run better candidates, so that they’re in charge when it comes to picking justices. They can’t run horrible neoliberal corporatist scum candidates who lose, then complain when the winners who are even more conservative than they are rightfully exercise their power. And if managing to be in such a position they can’t be full of lazy hubris like Obama and simply abandon their duties to aggressively appoint justices, assuming Dems will always be in charge. Let’s call that “RBG arrogance”.
Also, SCOTUS is only such a huge issue because again–neoliberal corporatist politicians refuse to use their legislative power when in charge to make laws which wouldn’t ever rise to SCOTUS review.
2000–huge hem and haw about SCOTUS overruling democracy to give Gore the win. Huge hem and haw about the Electoral College. What do Dems do to fix that with legislation after they gain power in 2009? NOTHING. Then they whine about Republicans when they actually do use their power.
This confirmation is another good example, hem and haw yet the feckless neoliberal corporatist Democrats don’t use every means of whatever they power they have to block/delay the hearings or voting. Corrupt scum like Feinstein instead hugs their “enemies”. Pathetic.
It isn’t the GOP or conservatives fault that they USE the power they have. It absolutely IS the fault of Democrats when they refuse to do the same.
This is a systemic problem with the corrupt Democratic Party, which SCOTUS will never, ever fix. Democrats need to take responsibility and wield their power, instead of whining to daddy SCOTUS about how the mean Republicans aren’t being fair. And if they want to represent “the interests of the vast majority of people in this country” they need to start running candidates who do that! Vast majority want UHC, no fracking, student loan forgiveness…yet the Democratic Party rigs primaries to squash the candidate who represents that.
This complaint about SCOTUS is waaaaay down the line of what needs to be fixed with Democrats.
Excellent points.
As I’ve been saying for years to fellow progressives: “Beating Trump/GOP is just the price of admission to the real battle.”
America’s true bipartisans are — how shall we put this delicately? — corporate scum. That is what unites them.
“As Republicans ram through Trump’s third Supreme Court nomination with an election underway”
You mean “as Republicans use the legal power available to them to appoint a Supreme Court justice”?
If Obama and Democrats truly wanted Garland to be justice there were ways to do it. Maybe conservatives would’ve called it “ramming”.
In this context “ram” is a politically biased, loaded term. And in this article exposes the author as neither fair nor accurate.
What ways were there to get Garland before a Senate that refused to hear the issue? I’m no constitutional scholar, but I’m pretty sure you can’t hold a gun to the Senate’s head.
Recess appointment. It wasn’t and isn’t perfectly settled, Constitutionally.
And other tricks to force the issue. Blocking the Senate. Legal challenges. Obama and Dems didn’t really try. Certainly not as hard as the GOP would’ve in the same situation.
If the courts were expanded it won’t matter if the same lazy, arrogant Democratic Party is continuously too weak to take advantage. [Or too secretly in favor of conservative justices, which is likely the major issue.]
It’ll actually be counterproductive, since the conservatives will use their power to fill vacancies while the liberals lollygag or, like Schumer in the past three years, actively help conservatives speedily fill hundreds of spots. Come on.
Despite the debatable constitutionality, Congress has the power to end recess appointments– which they surely would do once Trump was inaugurated– so what would be the point?
I don’t know what blocking the Senate means.
What would be the grounds for any legal challenge? Because I’m struggling to see any that aren’t frivolous.
Power to appoint a Justice isn’t settled. Teddy Roosevelt appointed justices via recess appointment. So it already happened. That’s one avenue the Obama admin could’ve went with, a recess appointment. Just DO IT then afterwards maybe the courts wouldn’t uphold it and call it unconstitutional.
Bush tortured random folks in Gitmo, until vs. Boumedine which SCOTUS insisted on habeas corpus. Which didn’t happen and Bush and Obama continued to ignore and there are still innocent humans in Gitmo spending all their life there until death.
Would you like to trade places with a prisoner in Gitmo, where you would tell your jailors about frivolity and legality?
My point is that “legal grounds” is utterly laughable. Presidents can assassinate Americans, can suspend habeas corpus, can commit genocide on hundreds of thousands of Yemenis. Can destroy the most prosperous African state and turn it into a literal slave market.
And yes, in the small context of US SCOTUS appointments, there are small “legal” grounds to oppose them if either of the duopoly parties want to do so. Neither of them, OBVIOUSLY, give an actual shit about legality. And they do give a shit about their own pockets and donors, and playing a game on constituents–re: “oh gosh abortion”.
Disgusting pigs. Sorry though if this reply sucks, I’m drunk.
Julie Hollar though–I’ve seen Trump Derangement Syndrome infect soooo many people. Please just take a break from writing articles for FAIR, which prior to your mental breakdown are very good.
Nothing will do unless we have it all!
the idea that the country would have three equal branches of government went ta-ta the minute political parties appeared. hence the whole idea of nine justices sitting down and arbitrating a decision in a nonpolitical manner plainly an absurdity. take what is going on at the present, justice barrett owes her place on the court to the president’s ambitions(as he so voluminously laid bare) to remove the aca health system at any costs. the republican party were unable to accomplish the deed through the legislative process so they have to grasp maybe their last chance to remove the current existing law through the supreme court where there are now sufficient favorably appointed lackis on hand to do the dream deed. what a way is this to run a government of a super power. is it this action really a third world playbook
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Democracy means rule by the elected representatives of the people, not by appointed judges. It is a defiance of democracy for a court to overturn legitimate laws as was done in Citizens, Shelby, Buckley and many others. So Citizens resulted in unlimited spending by the billionaires and corporations and a Congress representative of the rich and powerful and this will be the case for all future elections. And the end of democracy and, eventually, another civil war
May I just say what a comfort to uncover someone that actually understands what they are discussing on the
net. You certainly realize how to bring an issue to light and make it important.
More people really need to read this and understand this side of your story.
It’s surprising you aren’t more popular given that you definitely have the gift.