99¢ for the first month
99¢ for the first month

'Court packing' assertion misses the point

The Examiner

The court-packing question came up again during last week's debate between Vice President Mike Pence and Sen. Kamala Harris. Pence pressed Harris: If the Democrats win the White House and Senate, will they increase the membership of the Supreme Court to dilute the 6-3 conservative majority that will be established if Amy Coney Barrett is confirmed?

John Crisp is a TNS op-ed writer. (TNS)

Harris declined to answer. Candidate Joe Biden did the same the following day. The question is a disingenuous attempt to deflect attention from the more profoundly important issues connected to this election.

Increasing the court’s size is an unsavory option, but it is not illegal or necessarily unscrupulous. Unfortunately, the idea is tainted by language – "packing" just sounds bad – and by President Franklin Roosevelt's clumsy attempt to expand the court in 1937.

Nine is not a magic number designated in the Constitution. When F.D.R.'s New Deal policies hit roadblocks in the Supreme Court, he noted that the size of the court had varied widely since the nation's founding: The court was established with six justices. In 1801 it had five. In 1807 there were seven. In 1837 it had grown to nine, and there were 10 in 1863. In 1869, they were back to the current nine.

Roosevelt believed the court was wrongly derailing legislation meant to alleviate suffering during the Depression and provide for a fairer, forward-looking America. Many of the rejected measures are ones we now take for granted, such as minimum wage laws and fair labor practices. His solution was to appoint additional justices who could adapt to the times.

Uncharacteristically, Roosevelt bungled – failing to convince the media, his fellow Democrats or the public. Fortunately, the court shifted on its own. It began to rule in ways more consistent with a modern society. 

Ideally, Supreme Court justices should be chosen on the basis of their integrity, fairness and competence. Centrist candidates, such as Merrick Garland, deserve bipartisan support, which Garland received before President Obama nominated him to the court during the last year of his presidency.

The problem with the current court is that it is already packed. Trump has committed to nominate only justices who are ideological, who will overturn Roe v. Wade, for example.

Republicans played the hardest of hardball with the Garland nomination, and the Democrats have no obligation to take one of their most potent weapons off the table.

Anytime a politician won't answer a question, it looks suspicious. But Republican criticism of Biden's refusal is a glaring irony in light of the questions that Trump and Pence refuse to answer. 

How does the Trump administration account for the deaths from Pandemic 2020? How, specifically, will the Trump administration provide for citizens with pre-existing health conditions? 

Will the Trump administration commit to a peaceful transfer of power? No answers.

Strange, isn't it? The Republicans gain political traction by accusing Democrats of a willingness to violate a rule that doesn't exist, while refusing to answer questions about their flagrant violation of the rules, norms and laws that are the bedrock of our nation.

John M. Crisp, an op-ed columnist for Tribune News Service, can be reached at