united-states us-constitution us-supreme-court
Is &quot;packing the court&quot; legal?
<p>Why is the idea of &quot;packing the court&quot; so controversial? Wasn't the Constitution specifically designed to allow Congress and the President to &quot;pack the court&quot;?</p>

<h2>Yes</h2>
<p>It's legal: but that's more of a bug than a feature.</p>
<p>The Constitution says this about the appointment of Supreme Court judges:</p>
<blockquote>
<p>he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ...</p>
</blockquote>
<p>In the <a href="https://avalon.law.yale.edu/18th_century/fed76.asp" rel="noreferrer">Federalist Papers: No 76</a>, Hamilton had this to say:</p>
<blockquote>
<p>But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. <strong>It is also not very probable that his nomination would often be overruled.</strong> The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.</p>
</blockquote>
<p>and in <a href="https://avalon.law.yale.edu/18th_century/fed78.asp" rel="noreferrer">No 78</a>:</p>
<blockquote>
<p>It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that <strong>&quot;there is no liberty, if the power of judging be not separated from the legislative and executive powers.&quot;</strong></p>
</blockquote>
<p>He was wrong about the first but right about the second.</p>
<p>Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed.</p>
<p>Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President.</p>
<p>Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency.</p>
<p>This <a href="https://theconversation.com/partisan-supreme-court-battles-are-as-old-as-the-united-states-itself-146657" rel="noreferrer">analysis</a> shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average.</p>
<p><strong><a href="https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482" rel="noreferrer">The US Supreme Court has always been partisan.</a></strong></p>
<p>Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In <em>Brown v Board of Education</em> 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS.</p>
<p>So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus.</p>
