Marshall H. Tanick, BridgeTower Media Newswires
“[I]n my view, judges should not be speaking to potential issues and certainly not a nominee to a position on the Supreme Court.”
— Judge Ketanji Brown Jackson, (March 22, 2022)
The seemingly dormant issue of “court packing,” enlarging the membership of the U.S. Supreme Court, reared its head during the recent confirmation hearing of new Justice Ketanji Brown Jackson.
Her demurrer to questions about that topic from some Republican senators was cited by a few as a factor in their votes against her, although she managed to be confirmed by a 53-47 vote, with three GOP senators crossing party lines to vote with all 50 Democrats.
The issue, at least as a partisan political matter, probably is not going to go away, even though her immediate predecessor, nominated by then-President Donald Trump with unanimous GOP support, was equally circumspect in her confirmation hearing in the fall of 2020. When asked about court packing, Judge Amy Comey Barrett declined to answer, terming it “a policy issue,” outside the purview of her role as a prospective Supreme Court jurist.
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Respective reticence
The respective exercises in reticence by those nominees cover both grounds.
From their viewpoints, probably rehearsed with their handlers, it’s a “policy” issue (Coney Barrett) that should not be responded to or it’s a “potential” legal issue (Brown Jackson) that might be litigated in the Supreme Court and should not be addressed.
Either way, the prospective high court jurists refuse to wade into these roiling waters. Like many contentious issues it’s “Don’t ask, and if you do, I won’t tell.”
The public, for its part, seems narrowly divided on the issue. Recent public opinion polls have reflected a slight majority opposed, heavily imbued with Republicans, with the supporters mainly consisting Democratic-leaning voters. Both segments are largely unaware of the history of the Supreme Court by the numbers.
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Supreme size
The semantics over enlarging the Supreme Court overlook that its size has fluctuated in the early years, beginning at five at the birth of the Republic, until stabilized at nine in a post-Civil War measure in 1869, 28 U.S.C. §1. This occurred after the Court had ballooned to 10, an odd even number, during the war. That was the last change, so far, after five prior size modifications.
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Calling Congress
The concept known as “court packing” has been advanced from a number of quarters, largely progressives, due to discomfort with the current six-conservative majority among the nine Supreme Court justices. But it was dealt a blow late last year by a select 34-member bipartisan commission deployed by President Joe Biden to study the issue, which came up with a 288-page missive that studied various proposed changes to the structure and composition of the Supreme Court including “packing,” but made no recommendations.
The proposition has been tarnished with the lingering recall of the failure of President Franklin D. Roosevelt’s effort to do so early in his second term in 1937 by adding up to six justices, one as each sitting jurist 70 years of age. Although FDR’s overture was unsuccessful, never making out of a congressional committee, history teaches that his initiative had some impact because it may have swayed at least one “swing vote” justice to bolt from the five-member group that had invalidated some key New Deal measures and voted to uphold others.
However, there’s another type of “packing” called for in the nation’s capital: adding members to the House of Representatives, whose composition has lagged well behind the growth of population. Its membership was set by statute in 1911 at 435 and has not changed while the country has grown more than threefold since that time, when each of the 435 members represented fewer than 250,000 constituents of the total population of slightly above 100 million.
With more than 330 million people now, the constituency of each representative has swelled to more than 700,000. Because each constituent’s voice is heard much less, lobbyists, large financial donors, and the like will have disproportionate clout. Minimization of voices of individual voters may contribute to the malaise that affects the public’s view of politicians in general and Congress in particular.
While it may not be feasible to restore the 250,000:1 ratio of a century ago, membership in the House should be enlarged. Doubling it to 900 members, would give every Representative about 360,000 constituents, allowing each a greater voice in the process and lessening the role of larger contributors, along with lowering campaign expenses and reducing the need to raise huge amounts from donors. Combined with 100 senators, constitutionally established as two per state, regardless of size, that would make for a nice round number of 1,000 members of Congress.
Some significant side effects would occur, including further increasing power of conservative, Republican-leaning Sun Belt states, where the population is increasing fastest, as evidenced by those states gaining 10 seats in the House of Representatives as a result of the 2020 census, while diminishing the number of representatives from states with lesser population growth such as some on the East Coast and in the Midwest, including possibly Minnesota. But some of the latter are experiencing greater growth in people of color and younger voters, which might assuage Democrats.
One major problem with expansion, however, is the cost for structural renovations and attendant expenditures on salaries and benefits, which would double, along with staffing and space to accommodate more personnel.
But increasing the size of Congress seems warranted simply as a matter of the population growth over the past century-plus and diminishing the undue influence of wealthy donors and other heavy hitters.
Expanding membership would only take an act of Congress, approved by the president, without the difficulty amending the Constitution, which would be required to alter composition of the Senate, which is constitutionally prescribed at two per state regardless of population size. Article I, § 3.
The proposed congressional expansion still leaves the U.S. Senate with two members from each state, regardless of size. That anomaly that can be corrected only through a constitutional amendment, which is not only cumbersome but unimaginable to be acceptable to smaller states that benefit from the current distorted arrangement.
But that’s an issue for another day.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
