GRAND RAPIDS, Mich. - Two debates down, two to go. At Wednesday's Vice Presidential debate, Vice President Mike Pence pressed Kamala Harris on whether a Biden Administration would 'pack' the Supreme Court by adding liberal justices if Joe Biden wins the election.
But what does it mean to 'pack the court'?
Assistant Professor of Political Science at Central Michigan University, Kyla Stepp says it essentially means adding more seats to the Supreme Court. But she says, that decision is not up to a president's administration.
“The constitution says very little about the supreme court, it essentially says, there will be one and the justices will serve for life," says Professor Stepp. "Congress is always the one who has decided how many seats on the supreme court there will be. It started with 6, back in 1790 when the court was first formed and it fluctuated. It went to seven it was at ten briefly and now its at nine, its been at nine since 1869."
And even if Joe Biden wins the election, Congress must also be controlled by the democrats for a law to be passed.
"If Joe Biden is elected, and if and only if there is a democratic majority in the Senate, then the House, President and Senate would all be part of the same party, they could pass a law that would increase the number of justices on the supreme court," says Professor Stepp. "What people are thinking is that it would go up to thirteen, so that way Joe Biden could appoint enough people to make it more even but have a slight more liberal majority."
13 ON YOUR SIDE political expert and Constitutional Law Professor at WMU Cooley Law School, Devin Schindler says there is no magic to the number nine -- which is the number of justice seats currently on the Supreme Court.
“Article 3 of the constitution says there will be supreme court, and then leaves to congress what is going to be the exact nature of the makeup of the supreme court. There’s no magic to the number 9," says Professor Schindler. “The last attempt to pack the court occurred in 1937. Franklin Delano Roosevelt who won the election by a landslide, he was very popular because of the new deal legislation. The problem was the new deal legislation was being struck down by a very conservative court. Four members of the court, who were called the 'horsemen of the apocalypse' at the time consistently ruled against ruled against president Roosevelts legislation.”
Packing the court has been used more often, and is often a topic during the presidential debates since President Trump nominated Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg' seat on the Supreme Court. If Amy Coney Barrett is confirmed, the Supreme Court would ideologically shift to a 6 to 3 conservative court.
But, if Joe Biden wins the election in November, experts agree that they do not expect to an increase in the number of seats on the Supreme Count at this time.
“I don't think anything is going to happen immediately because I don’t think the public support is there," says Professor Schindler. "The public does not like it when congress plays politics with the judicial branch of government. One strategy would be possible is to let this right-leaning originalist court issue a series of rulings over a couple of years that are very unpopular. Then, if there was a groundswell to support doing something about it or who knows, we could lose one of the originalist justices-- they could retire-- and it would never become an issue, because Biden would be able to replace seats with more left-leaning seats. I have no crystal ball, but I don’t think public support is there right now.”
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