The recent appointment of Amy Coney Barret by Donald Trump was an obvious example of the not very new phenomenon of court packing.
The idea of court packing, in the sense I am referring to, is the appointment of a Supreme Court Justice in order to gain favorable advantage for a political party. Although court packing is not unique to the Supreme Court, I would say court packing on the Supreme Court is the most detrimental to the democratic process.
Recently, Donald Trump appointed a new justice to the Supreme Court, in the wake of the death of justice Ruth Bader Ginsburg. However, the issue with this appointment is that it came just eight days before the national elections. It is evident that in doing this Trump was trying to gain support for both the republican party, and a Supreme Court that is sympathetic to his claims of election fraud, were a suit to reach the Supreme Court. Both reasonings would lead to the erosion of democracy.
Trump trying to create a Supreme Court that is sympathetic to him and his lawsuits is an erosion of democracy as it would be a decision that could give Trump powers outside of those legally granted to him in the constitution. On top of this the citizens of the United States would not be the ones choosing the leader in this case, it would instead be justices appointed by, or sympathisers of, the leader himself. This obviously erodes the process of democracy and sets a precedent that the president can abuse the constitution in order to keep power or increase power. This process of using the constitutional powers granted to you to erode democracy fits under the term that has been coined as “abusive constitutionalism”.
Packing the Supreme Court in it of itself is a form of abusive constitutionalism, which has been used in countries, such as Venezuela, to gain power for the government in charge as was done with Hugo Chavez. In this case the form of abusive constitutionalism was not rewriting, or amending the constitution as was done by Hugo Chavez, but instead abusing the powers granted to the president in order to gain control unconstitutionally (in the case that the elections were to be in favor of Biden, but Trump won via court order).
In appointing Amy Coney Barret only eight days before the 2020 election it could very well be argued that the reason for this was to gain favor in government for the republican party going forward before the election during which the majority of power in government may sway towards the democratic party. This action is worsened by the fact that Obama’s appointment of a Supreme Court Justice 4 years prior, but 9 months before the 2016 elections was blocked in the Senate. The Majority leader in the Senate, senator Mitch Mconnel even went as far as to state“They won’t be able to do much about this for a long time to come.” in reference to democrats. His words show that the mindset of our government is a competition for power rather than what it was meant to be, a representation of the beliefs and needs of the people. The idea of court packing also furthers the worsening “us vs. them” mentality that causes a deal of political polarization in the United States, to the point that the senate majority leader is referring to the democratic party as “them”.
Court packing allows a great deal of distrust to form amongst citizens as it seems a political party is trying to consolidate power rather than allowing power to be in the hands of the people. Trump’s packing of the Supreme Court, or any court packing for that matter, are staunchly against what the founding fathers had intended for the court system, which was a non partisan court system. This also causes distrust in the court system itself as it creates distrust among citizens of the court system and its legitimacy. Without legitimacy in one of the three branches of government the democratic process cannot be trusted, therefore, democracy will have been heavily degraded in the United States.
The idea of packing the court is not a phenomenon unique to one political party or another. However, the most recent case of court packing is largely different in the sense that it had been done after months of the Trump campaign sewing doubt into voters of the legitimacy of the electoral process in hopes that the idea would gain enough support to have a suit make it to the supreme court in order for the election to be decided. However, the idea of filling court seats to gain advantage in government for a political party is harmful to democracy no matter what party is doing the court packing, especially just before an election. This is because it is essentially not allowing the representative that would be picked by the people to fill the seat.
I agree with the premise of your argument that President Trump’s appointment of Amy Coney Barrett to the Supreme Court had political motivations regarding the election and could be seen as abusive Constitutionalism, but I would not define this particular instance as court-packing.
Trump has appointed an incredibly large number of judges throughout the federal system that will ensure his influence will last for years beyond his presidency, and Barrett’s appointment is hypocritical to say the least after the Republican-controlled Congress refused to consider Merrick Garland. However, since he did not pass a statutory or Constitutional change that permitted the appointment and confirmation of multiple new justices at the same time, I do not believe this qualifies as court-packing. This does not exonerate Trump nor his party for violating a norm they set in 2016, but Trump’s actions are within the purview of the Constitution.
I fully agree, however, with your point of Trump’s politicization of the court system through this appointment and others throughout the federal level. He has clearly made selections and choices that advance his agenda in what was intended to be an apolitical branch of government. Filling this seat was undoubtedly a politically motivated move and has sparked a serious reaction on the left. This will continue to fuel rising polarization and animosity in a heavily divided America following the 2020 Presidential Election. Given that the Supreme Court is expected to neutrally and politically interpret the Constitution, political motivations are concerning and should be met with real scrutiny.
The Supreme Court was not intended to be the arena for political battles, but this is precisely what we have seen recently. Chief Justice John Roberts has strived to maintain the Court’s legitimacy and public image and will have to cope with the growing politicization of its appointments and spotlight in this realm.
J.C. I would disagree that this does not count as court packing. Especially as the definition of court packing states court packing is “the practice of changing the number or composition of judges on a court, making it more favorable to particular goals or ideologies, and typically involving an increase in the number of seats on the court”. In appointing another justice only 8 days before a new election, especially after trying to sew doubt about the quality of the election stating he would challenge the “voter fraud”. I would say that there was an obvious goal behind his appointment of Barrett just before the election of trying to gain favor in the case that he could get the election results to the Supreme Court. After now seeing that he did in-fact try and get a case regarding election results to the Supreme Court, I would say that this backs the idea that his appointment of Barrett would qualify as court packing.
Hey Stephen – Loved your analysis of this really salient and divisive recent event. I wonder if you might consider the broader defiance of political norms both in this situation and throughout the administration. I don’t believe that the timing of appointments to the Supreme Court are set in the constitution but rather a subversion of norms.
I thought your analysis of actions surrounding the appointment was really fascinating. I think you might want to consider looking at Lieberman’s The Trump Presidency. The claim is made that the combination of polarized, two-party presidentialism, a polity divided over membership and status in the political community, and the erosion of democratic norms we see today, although these individually are not new, is unique. It seems as though what you’re describing here is this point: not so much that we are observing the defiance of the constitution, but a novel threat to our political structure in a way we haven’t really seen before, through sewing division and doubt in the electorate.
Hi Stephen, I completely agree that the appointment of ACB to the court so close to the election contributes to democratic erosion. Her appointment was a betrayal of institutional forbearance by the president.
Further, the judicial branch is meant to act as a counter-majoritarian protection of minority rights, and with a 6-3 conservative makeup, and staunch adherence to conservative ideas by Thomas, Alito, Gorsuch, Kavanagh, and likely Coney Barrett as well, gives the court the ability to overturn Roe v. Wade and even Obergefell (gay marriage).
In his last months as president, Donald Trump is ramping up the federal executions. We saw this week that Brandon Bernard, who has been in prison for 22 years, since the age of 18, was executed via lethal injection, despite hundreds of thousands of letters and calls to the white house and the department of justice.
The Supreme Court denied the application for a stay of execution, and denied the request for certiorari (to have the case heard by the Court.)
Trump’s Supreme Court had the power to grant a father with a spotless record while in prison for 22 years (almost impossible to achieve), who was 18 when a part of this robbery, who did not kill anyone, the chance to petition for his life, and they denied it without thought of even hearing the case.
I am very torn about whether or not Biden’s administration should expand the court, as it might set a dangerous precedent, however, the court as it exists right now is dangerous.