Back in the olden days, the U.S. Constitution established the Supreme Court with The Judiciary Act of 1789, decreeing the Supreme Court to be composed of five Associate Justices led by a Chief Justice. Throughout the years, these numbers have increased or decreased according to the desires of Congress. Because the number is not mandated within the Constitution, Congress has the authority under the Necessary and Proper Clause to adjust the number of judges. 

And yet, everyone is in a big huff right now (following the election of President Biden) trying to determine whether or not court-packing is constitutional. Politicians arguing over power – wow, go figure.

Though there is past precedent allowing for the number of Justices to be adjusted, the Supreme Court has remained at 9 Justices for over a hundred and fifty years. In the 30s, FDR attempted to increase the number of Justices in an attempt to pack the court with possible allies. 

He failed miserably. 

Since then, there has been a widespread notion that court size shouldn’t be changed if the purpose in doing so is for explicit political manipulation. Many Democrats are arguing that the Necessary and Proper Clause justifies current expansion as it would remedy the ideological imbalance on the Court itself. The Court is currently stacked toward a conservative tenor, which some argue is unrepresentative of the American population and the partisan divide. 

Increasing the number of Supreme Court Justices would allow the court to be more balanced, and, theoretically, provide more fair and representative decisions for the benefit of all Americans rather than just conservatives. There could be a legitimacy crisis if a conservative Court were to all of a sudden start overturning all future democratic legislation and actions posed by the current liberal-leaning Congress and Executive Branch.

The Supreme Court leans conservative, many arguing as the result of manipulative, dirty, and often hypocritical tactics on behalf of Senate Republicans. In 2016 Mitch McConnell refused to consider Obama’s nomination of Merrick Garland under the rationale of it being during an election year and yet, strong-armed the nomination and speedy confirmation of Amy Coney Barret just this autumn. Both of Trump’s nominees – Barrett and Brett Kavanaugh – have faced severe pushback from Congress regarding both their qualifications as judges, as well as the general ethics of their preceding actions. Barrett has been confirmed to support a religious cult that inspired The Handmaids Tale, and Kavanaugh has been accused of sexual assault in an incredibly public trial. Not super impressive nominations obviously, as both have been criticized for being unqualified and morally corrupt to the point of their views impeding their neutrality. They were incredibly calculated choices on the behalf of the Republican majority of the time, as they are young and deeply conservative. Senate Republicans pushed Coney Barrett and Kavanaugh’s confirmations through incredibly quickly as their control in Congress was fleeting.

Others argue that the Democrats’ attempts to increase the court size is equally manipulative and flawed. Head Democrats have stated that increase is justifiable due to the questioned legitimacy of recent court nominations. Making up for past unethical procedures would, therefore, be justified by the Necessary and Proper Clause.

My opinions on the matter are actually separate from a constitutional argument and are critical of the document itself. I personally believe that court-packing is justified in this specific case, as it will balance out the past tactics that have created the conservative control of the Supreme Court. 

However I do not believe that the Constitution needs to be the foundation and basis for every decision in the United States government. The Constitution, while an important part of history and obviously an incredibly important factor of American politics, is outdated and needs to be adjusted to fit with modern times. Written over 200 years ago, the document does not address the needs of the contemporary era nor does it allow for necessary political and infrastructure-based development within our government. The constitution has been deified by our government and people to the point where making alterations and adjustments – Amendments – dependent upon our needs is almost impossible. The partisan divide has created an unyielding mentality around growth within our government systems. The Constitution might not always be the most relevant tool for determining what is best for the country, Court expansion included. The Supreme Court should represent the needs of the American people. It does not particularly matter if Court packing is constitutional if the constitution itself has become so outdated and just another excuse by elected officials to maintain our broken systems.