SCOTUS_10.1.2020
Audrey Bowler / Media Matters

Research/Study Research/Study

Myths and facts about Supreme Court expansion

Written by Timothy Johnson

Published

This resource will be updated as more myths materialize.

Amy Coney Barrett’s nomination to the Supreme Court is just the latest instance of Senate Republicans radically manipulating the judicial nomination process and transforming the federal judiciary to suit their extremist ideology. During the Obama administration, Republicans oversaw unprecedented obstruction of the Democratic president’s nominees, even in instances of those who were clearly non-controversial. But since President Donald Trump took office, his nominees, who are often right-wing demagogues, have been confirmed by the Senate at an unprecedented clip. In light of such brute restructuring of the nation’s courts, there is an increasing call among Democratic politicians and their constituents to restore a semblance of balance and democratic representation in our judiciary by expanding the Supreme Court.  

Fearful of any attempts to ameliorate the harms caused by their decades-long power play, Republicans and their conservative media allies have been quick to pejoratively smear this constitutional and previously used structural reform as “court packing.”  But Republicans have often used their power to control the number of seats on the Supreme Court and in lower federal courts, and right-wing media have been quick to cheer them on. Any Democratic attempt to level the playing field, such as by adding seats to the Supreme Court, would be a similar exercise of legislative power with one distinction: If Democrats attempt to add federal court seats, it would bring ideological balance back to the federal courts, while Republican efforts in recent years have aimed to skew the judiciary to the far right.

Below are the myths about adding seats to the Supreme Court often pushed by right-wing media figures and what actually is the reality:

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  • Adding seats to the Supreme Court is an exercise of constitutionally granted power

  • FALSE: Fox’s Sean Hannity falsely claimed that the prospect of Democrats adding seats to the Supreme Court was contrary to “our constitutional system of governance,” “co-equal branches of government,” and “separation of powers.” [Fox News, Hannity, 10/12/20]

    FALSE: On Fox News, Senate Judiciary Committee member Chuck Grassley (R-IA) falsely claimed adding seats to the Supreme Court would “change the Constitution very dramatically.” [Fox News, Your Week, 10/12/20]

    REALITY: The U.S. Constitution does not set the number of seats on the Supreme Court. Seats can be added (or removed) by Congress passing legislation that is then signed by the president. This process would actually be an example of two co-equal branches of government using their constitutionally derived, but separate, powers to achieve a desired outcome. Throughout its history, the Supreme Court has had between five and 10 justices, and the last time the number of justices changed was in the 1860s.

  • Adding seats to the Supreme Court is not “radical” in the face of unprecedented norm-breaking

  • FALSE: Fox’s Tucker Carlson claimed that “packing the Supreme Court, that’s a byword for radicalism.” [Fox News, Tucker Carlson Tonight, 10/12/20]

    FALSE: Fox’s Neil Cavuto claimed that a “traditionalist” would insist that the Supreme Court have only nine seats. [Fox News, Your World, 10/21/20]

    Particularly in recent years, the Republican Senate has shattered norms of judicial nominations -- through obstruction and changes in Senate rules -- in order to exert influence over the number of federal judges, serving on the Supreme Court or in the lower courts. Against this backdrop, an attempt by Democrats to even the playing field would not be radical.

    REALITY: The GOP-controlled Senate oversaw unprecedented obstruction of President Barack Obama’s judicial nominees, impacting the number of Democratic and Republican nominees in federal courts. In 2013, after then-Senate Majority Leader Harry Reid (D-NV) changed Senate rules to eliminate the filibuster on non-Supreme Court judicial nominations, PolitiFact conducted an analysis that found the obstruction of Obama’s nominees was historically unprecedented. According to PolitiFact, there were “68 individual nominees blocked” under all presidents before Obama and 79 individual nominees blocked in just the first five years of Obama's presidency.

    REALITY: In 2016, prominent Senate Republicans said they would indefinitely change the number of seats on the Supreme Court to eight, following the death of Justice Antonin Scalia. After Republicans refused to give Obama Supreme Court nominee Merrick Garland a hearing, this group of Republican senators said that they intended to keep the seat held by Scalia open indefinitely if Hillary Clinton won the 2016 presidential election. As political scientist Aaron Belkin explained in a report for his group Take Back the Court, “the blockade of the Merrick Garland nomination proves that the Republican Party is committed to adjusting the size of the Supreme Court for political reasons; there is no meaningful distinction between shrinking the court, as the GOP did in 2016, and packing it.”  

    REALITY: During the Obama administration, Senate Republicans attempted to indefinitely change the number of serving judges on the U.S. Court of Appeals for the District of Columbia Circuit by refusing to consider any nominees for three openings. Republicans and their right-wing media allies bizarrely and erroneously referred to Senate Democrats’ attempts to fill those seats as “court packing.”

    REALITY: “Trump has appointed more federal appeals court judges to date than any recent president at the same point in their presidency,” according to Pew Research. Given Republicans’ obstruction of Democratic nominees to the Supreme Court, adding seats to the Supreme Court would actually increase fairness and promote representative democracy -- especially because if Amy Coney Barrett is confirmed, three of the nine Supreme Court justices would have been nominated by a president who lost the popular vote.

  • Adding seats to the Supreme Court is not comparable to actions taken by a former Venezuelan dictator

  • FALSE: Tucker Carlson claimed that Biden adding seats to the Supreme Court would be comparable to Venezeula dictator Hugo Chavez adding seats to that country’s Supreme Court in 2004. [Fox News, Tucker Carlson Tonight, 10/12/20]

    REALITY: Chavez’ additions to the Supreme Court were precipitated by a total power grab which he achieved in explicit contravention of Venezuela's constitution. Chavez, who previously had led a failed military coup attempt, was elected president in 1998 and immediately “demanded a referendum to ask the people directly whether to call for a ‘constitutional convention,’ an unconstitutional proceeding found nowhere in the 1961 constitution,” which like the U.S. Constitution divided power between an executive, legislative, and judicial branch. Facing political pressure, the Supreme Court allowed the referendum to go forward and Chavez and his supporters in the legislature seized near total power, which included, among other things, adding Chavez supporters to the Supreme Court. Unlike what happened in Venezuela, adding seats to the U.S. Supreme Court would follow a process that has precedent and is legitimate under our Constitution.

  • Adding seats to the Supreme Court would not turn the judicial body into a legislature

  • FALSE: Fox’s Jeanine Pirro claimed that adding seats to the Supreme Court would result in “justices running around creating laws that are not passed by Congress.” [Fox News, Justice with Jeanine, 10/10/20]

    REALITY: As established in the landmark 1803 Supreme Court decision Marbury v. Madison, the constitutional power of the Supreme Court consists of “judicial review,” which means determining the constitutionality of actions of the legislative and executive branches. The power to pass laws is exclusive to Congress.

  • Republican federal judicial nominees are further from center than Democratic nominees

  • FALSE: Fox News contributor Mollie Hemingway claimed Democrats adding seats to the Supreme Court is bad because they view the court as a “super legislature” while Republicans want their appointed judges to “determine what the law is in that they will do it without favor for their own personal viewpoint.” [Fox News, Special Report, 10/12/20]

    REALITY: Trump has nominated unusually ideological right-wing judges to the federal bench, making those judges more reliable votes for conservative issues. According to an analysis from Demand Justice, “Trump’s median appointment is more conservative than George W. Bush’s, and is more conservative than Obama’s median appointment was liberal.”

  • The term “court packing” is opportunistically applied

  • FALSE: Fox News host Steve Doocy and Fox News contributor Sean Duffy defined “court packing” as only adding additional seats to a court. [Fox News, Fox & Friends, 10/12/20]

    REALITY: “Court-packing” means adding or subtracting seats from a court, because as a practical matter those actions have the same consequences. Specifically, Senators from a political party add seats to fill with judges of their ideological alignment, or Senators from a party deny the other party the opportunity to fill seats with judges ideologically aligned with that party or outright reduce the size of the court in question to achieve the same goal. There is no meaningful distinction between these scenarios because they all “involve the manipulation of the size of the courts for political reasons.”

  • Republicans, not Democrats, are to blame for shattering judicial nomination norms

  • FALSE: Fox contributor Katie Pavlich falsely claimed Democrats were “blowing up” norms on judicial nominations and Republicans are now just playing by those rules. [Fox News, Outnumbered, 10/22/20]

    REALITY: Pavlich was referencing a 2013 change to Senate rules made by then-Majority Leader Harry Reid (D-NV) that eliminated the filibuster for federal courts nominees below the Supreme Court. Reid made the rule change in response to unprecedented obstruction of Obama’s nominees, including preventing Obama from filling any seats on the second most important court in the country during his first term, meaning this reform was a move that attempted to restore balance and fairness to the nomination process. Beyond Senate Republicans’ unprecedented obstruction of Obama’s lower federal court nominees, they also engaged in numerous other norm violations for partisan gain, including an unprecedented refusal to even hold a hearing for Obama Supreme Court nominee Merrick Garland. Once Trump was in office, Republicans then removed the filibuster for Supreme Court nominations to fill that seat. Senate Republicans have also diminished the “blue slip” process that gave the minority party some say in judicial nominees. The numbers don’t lie: One need only compare the rate of federal judges confirmed during the Obama administration to that of the Trump administration to see how Senate Republicans have destroyed norms in order to control the size and ideological makeup of the federal judiciary for partisan reasons.