Explainer: Democratic 'court packing' would prompt a gloves-off
political fight
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[September 21, 2020]
By Andrew Chung
NEW YORK (Reuters) - The vow by Republican
President Donald Trump and the Republicans to quickly fill U.S. Supreme
Court Justice Ruth Bader Ginsburg's seat despite a looming election has
revived talk among some Democrats of expanding the number of justices on
the court.
These Democrats, along with progressive activists, say all options must
be considered to counter what would become an entrenched 6-3
conservative majority that could threaten access to healthcare,
abortion, and civil rights.
A plan to expand the court would likely lead to a bare-knuckles
political fight with unpredictable consequences for both parties. Here
are a few things to consider about "court packing."
SIZE OF THE COURT
The number of justices on the high court has remained at nine since
1869, but Congress has the power to change the size of the bench and did
so several times before that.

LAST PACKING PLAN FAILED
In 1937, President Franklin Roosevelt, facing a court that repeatedly
struck down his New Deal legislation, proposed adding up to six
justices, one for each member of the court over the age of 70. The plan
faced considerable opposition, including in Roosevelt's own Democratic
party, and was never enacted.
ABOLISHING THE FILIBUSTER
It is not clear Democrats would pursue a court packing plan. Democratic
Senate leader Chuck Schumer told fellow Democrats on Saturday that
"nothing is off the table for next year" if Republicans move forward
with Trump's nominee.
But expanding the court would require Democrats to control Congress and
the White House. They would need to ditch a longstanding procedural rule
in the Senate requiring 60 votes to overcome a filibuster, a tactic
frequently used by the minority party to hold up legislation.
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A general view of the United States Supreme Court in Washington,
U.S., May 3, 2020. REUTERS/Will Dunham

DIVIDED DEMOCRATS
Democratic Senator Ed Markey wrote on Twitter on Friday that if
Republicans seat a new justice during an election year, after
refusing to give former President Barack Obama's nominee Merrick
Garland a hearing in 2016, "when Democrats control the Senate in the
next Congress, we must abolish the filibuster and expand the Supreme
Court."
The party's presidential nominee Joe Biden has opposed the idea in
the past. "I'm not prepared to go on and try to pack the court,
because we'll live to rue that day," he told the Iowa Starting Line
in 2019. His running mate, Kamala Harris, however, told Politico
last year that she was open to court packing.
THE COURT'S LEGITIMACY
In an era of hyper partisanship, the high court's legitimacy has
been increasingly called into question, particularly since the fight
over Garland's nomination. Packing the court could prompt future
Republicans to further expand the institution and could strengthen
the view that the court is purely partisan and renders decisions
based on politics rather than the law.

OTHER OPTIONS
Besides packing the court, activist groups and Democrats have
broached the idea of imposing term limits for justices. This would
likely require a constitutional amendment, though some scholars have
proposed ways to accomplish term limits by statute.
(Reporting by Andrew Chung; Editing by Noeleen Walder and Daniel
Wallis)
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