The four freedoms. Equal justice under the law is just one of the planks on  which
Lauren Funk

On November 25, the United States Supreme Court issued a five to four opinion enjoining New York Governor, Andrew Cuomo, from implementing a COVID-19 restriction which would limit religious services to gatherings of no more than ten people.[1]  The deciding vote?  Newly appointed Justice Amy Coney Barrett.[2]  Joining Justice Barrett in the unsigned opinion were Justices Neil Gorsuch and Brett Kavanaugh,[3] who were also both recently appointed to the Supreme Court.[4]  The three President Trump-appointed justices make up just half of the conservative bloc on the Court, effectively outnumbering the liberal justices by six to three.[5]  The Democratic Party has vehemently expressed concern over the growing conservative majority and what it could mean for issues like abortion, healthcare, and LGBTQ+ rights.[6]  Many notable figures on the left have responded to this shift by calling for judicial reform, namely court expansion, which is most commonly referred to as “court-packing.”[7]

The concept of packing the court (or decreasing its size) is not necessarily new.[8]  This is in part because the U.S. Constitution did not set out a specific number of Supreme Court justices in Article III, leaving the makeup of the Court for Congress to decide.[9]  Consequently, since 1789, the number of justices on the Court has changed seven times, the last of those changes in 1869, with an increase from seven to nine.[10]  Although the number has not changed in 151 years, one key challenge arose in 1937: President Franklin D. Roosevelt’s “court-packing” plan.[11]  After two years of facing a consistent blocking of New Deal legislation by a conservative Supreme Court, President Roosevelt proposed a plan to change the makeup of the court.[12]  The plan would, in effect, increase the number of justices from nine to fifteen and tip the Court in President Roosevelt’s favor.[13]  This was met with strong opposition in Congress and across the legal community, including members of President Roosevelt’s own administration.[14]  Moreover, after the plan was introduced, the Court began to shift its position in favor of key pieces of New Deal legislation, and thus, the court-packing plan became futile.[15]  The Senate subsequently voted against it by an overwhelming 70 to 22.[16]

Unlike President Roosevelt’s infamous plan, the recent talks of expanding the Court have been met with a fairly equal amount of support and opposition.[17]  Proponents in favor of court-packing have largely based their reasoning on three grounds.  First, and perhaps what ignited support for this issue in the first place, is the fact that the last three Justices appointed to the Supreme Court were appointed by a president that lost the popular vote in his election.[18]  As such, President Trump’s appointees may be seen to some as less legitimate,[19] and thus their decisions less reflective of the national preferences.[20]  Second, proponents contend that expanding the court would allow for greater judicial bipartisanship, especially if expanded using the five-five-five approach.[21]  This method would restructure the court by mandating that there be exactly five justices affiliated with the Democratic Party and five justices affiliated with the Republican party (the confirmation process remaining much the same).[22]  Together, those ten justices would have to unanimously agree on five additional justices and if they could not come to an agreement, they would lack the quorum needed to officially hear cases.[23]  This would ensure that neither political party maintains a stronghold majority in the Court.  Finally, many support court-packing because they believe that other alternatives would take longer to implement, thus increasing the likelihood that many liberal policies could be overturned or narrowed in the interim.[24]  Proponents argue the consequences of such reversals could be far-reaching, from immediate impacts on the environment[25] to interfering with a woman’s access to abortion.[26]

In contrast, opposing arguments are focused less on policy implications and more on the  threat that court-packing posits to democracy and judicial legitimacy.[27]  First, opponents contend that court-packing would, in effect, decrease tolerance for opposing viewpoints in an already deeply polarized America.[28]  One of the foundations of democracy is the people’s faith in the system, essentially “liv[ing] with ‘bad’ policies until [one has] the chance to reverse them through the voting process.”[29]  Specifically, opponents worry that restructuring the court to best fit a party agenda—either  by the Democrats now or the Republicans later—could signal a breakdown of the democratic system.[30]  Second, opponents have expressed concern over how court-packing could delegitimize the Court.[31]  Packing the Court with liberal justices to balance out (or perhaps outnumber) the amount of conservative justices could be seen as political interference in what is supposed to be a “no politics” zone.[32]  Opponents argue this could jeopardize judicial independence, which has been a distinguishing tenet of the Court since its inception.[33]  Lastly, opponents predict that this kind of political restructuring would set the precedent for a future back and forth cycle, leading to great instability in the Court over time.[34]  If the Democrats were successful in packing the Court in 2021, the Republicans could reverse this expansion or further pack the court as soon as they regain control of Congress, and the Democrats could reverse the Republican’s reversal the next time they were in control, and so on and so forth.  Opponents have argued this would “yield short-term political victories at the cost of the long-term health of [the] Republic.”[35]

While it is clear where some stand on the issue, President-elect Joe Biden, who openly opposed court-packing before the passing of Justice Ruth Bader Ginsburg, remained relatively tight-lipped on the topic in the last weeks of his campaign,[36] and has yet to address his stance on the issue since winning the election last month.  However, even if the Biden administration were to put a court-packing plan at the top of its agenda, it would still need a Democratic majority in Congress, and further, a Democratic majority that collectively supports the idea.[37]  Although these requirements seem daunting, it is not entirely far off, even if Biden has to wait until 2022 for a Democratic-controlled Congress.  If that were the case and Biden wanted to act sooner, or if he wanted to avoid court-packing altogether, he could rely on alternatives for Court reform that may garner more bipartisan support.[38]  Scholars have suggested proposals ranging from term limits[39] to a “binding set of nonpartisan rules.”[40]  These rules could set a firm deadline for nominations to the Court during presidential election years, make confirmation hearings private, and address the issue of nominating young justices to get long-term control.[41]

While these reforms sound promising, they could take time to pass through Congress, which means that the outrage felt by the Democratic Party over the current makeup of the Court is not going away anytime soon.  This is especially true in light of the fact that there are several significant cases that come before the Court every year, and the Cuomo case will likely not be the last time Justice Barrett is the deciding vote.  However, it is conceivable that history could repeat itself and the Court could respond to the threat of expansion like it did in 1937 by adjusting its position on key cases.  Whatever the outcome, change on the Supreme Court in the coming months and years is inevitable.

[1] Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *1, *3 (U.S. Nov. 25, 2020).

[2] Justice Ruth Bader Ginsburg had voted against similar religious challenges in the months preceding her death, after which Justice Barrett took over her seat on the Court. Adam Liptak, Splitting 5 to 4, Supreme Court Backs Religious Challenge to Cuomo’s Virus Shutdown Order, N.Y. Times (Nov. 26, 2020),

[3] Amy Howe, Justices lift New York’s COVID-related attendance limits on worship services, SCOTUSblog (Nov. 26, 2020),

[4] See Ed O’Keefe & Robert Barnes, Senate confirms Neil Gorsuch to Supreme Court, Wash. Post (Apr. 7, 2017),;  Kevin Breuninger & Mike Calia, Brett Kavanaugh confirmed by Senate in 50-48 vote, ascends to Supreme Court, CNBC (Oct. 6, 2018),

[5] Joan Biskupic, Supreme Court’s liberals face a new era of conservative dominance, CNN (Dec. 3, 2020),

[6] See Amy McKeever, Why the Supreme Court ended up with nine justices–and how that could change, Nat’l Geographic (Sept. 20, 2020),

[7] Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death Revives Talk of Court Packing, N.Y. Times (Oct. 22, 2020),

[8] See McKeever, supra note 6.

[9] See U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court . . . .”).

[10] McKeever, supra note 6.

[11] Editors, FDR announces “court-packing” plan, HISTORY (Feb. 4, 2020),

[12] Id.

[13] Gillian Brockell, FDR tried to pack the Supreme Court during the Depression. It was a disaster for him., Wash. Post (Sept. 24, 2020),

[14] Id.

[15] Id.

[16] Editors, supra note 11.

[17] See infra notes 18–35, and accompanying text.

[18] Gregory Krieg, It’s official: Clinton swamps Trump in popular vote, CNN (Dec. 22, 2016),

[19] See Richard Mailey, Court-Packing in 2021: Pathways to Democratic Legitimacy, 44 Seattle U. L. Rev. 35, 52 (2020) (suggesting that popular vote-losing President Trump’s “consequential” picks on the Supreme Court illustrates the argument that checks on the judicial appointments process is lacking, which can allow a president to seize the court without the will of the people).

[20] See James D. Zirin, Opinion, Beyond Court Packing: The Supreme Court Has Always Been Political, TIME (Nov. 2, 2020),

[21] See Quinta Jurecic & Susan Hennessey, The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing, Atlantic (Oct. 4, 2020),

[22] Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, Vox (Oct. 10, 2018),

[23] Id.

[24] See, e.g., Elaine Godfrey, The Democrats’ Supreme Court Hail Mary, Atlantic (Sept. 28, 2020),

[25] Id.

[26] See McKeever, supra note 6.

[27] See infra notes 28–35, and accompanying text.

[28] Bruce Ledewitz, A Call for America’s Law Professors to Oppose Court-Packing, 2019 Pepp. L. Rev. 1, 6–9 (2020).

[29] Id. at 6.

[30] Id. at 9.

[31] See id. at 14; Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, Heritage Found. (Oct. 5, 2020),

[32] See Jipping & Canaparo, supra note 31.

[33] Id.

[34] Walter Olson, Opinion, Packing the Supreme Court would lead to a slippery slope, CNN (Oct. 15, 2020),

[35] See Jipping & Canaparo, supra note 31.

[36] See Herndon & Astor, supra note 7.

[37] See Jeff Greenfield, How Democrats Could Pack the Supreme Court in 2021, POLITICO (Sept. 19, 2020),

[38] Jim Walden & Jo Wu, A better Prescription than Packing the Courts, Nat’l L.J. (Oct. 19, 2020),

[39] See Kalvis Golde, House Democrats to introduce new bill for Supreme Court term limits, SCOTUSblog (Sept. 25, 2020),

[40] Walden & Wu, supra note 38.

[41] Id.