Justice Anthony Kennedy’s retirement triggered alarm among left-wing lawmakers and activists by giving Donald Trump his second Supreme Court nominee in less than two years. It also inspired some to revive the idea of “packing the court” with additional Democratic appointees as soon as circumstances permit.
But Senate Democrats aren’t as keen on the idea—even if there’s a Democratic president and Congress to implement it in the future.
“Seventy-five years ago, we went through this,” said Democratic whip Dick Durbin. “And I think the Congress was correct in stopping this popular president named Franklin Roosevelt from that idea.”
Facing continued rejection from the conservative-leaning Supreme Court regarding his New Deal agenda, Franklin D. Roosevelt in 1937 floated the idea of appointing one new member for every sitting Supreme Court justice over the age of 70—up to six additional justices. The suggestion set off a fierce debate. The Senate Judiciary committee said at the time: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
“It was abandoned for good reasons,” said Connecticut senator Richard Blumenthal. “But I would look at the history again. I think its chances are slim to none.”
Adam White has noted the dangers of legislating “partisan changes to the Court’s structure:”
Even so, some other Senate Dems seem to be theoretically open to the idea: “When FDR entertained the proposal to change the number of justices, it was because there was a Supreme Court that steadfastly refused to support or tolerate a wide range of legislation that reflected the popular will at the time,” said Delaware senator Chris Coons. “We’re not there yet, and I hope we don’t get there.”
Connecticut senator Chris Murphy shrugged off the idea and said he is focused on the fight over the confirmation of President Donald Trump’s Supreme Court pick Brett Kavanaugh. “Kavanaugh is a radical judge who is going to permanently change the court and the country,” he said.
New Jersey senator Cory Booker, who said much the same, added of a potential court packing proposal: “We have a long tradition of nine jurists, and we should be very sober before we start tinkering with things like that.”
