From an early age we are admonished to “Never judge a book by its cover.” As we begin to pay attention to our participatory democracy, we quickly learn that any initiative named by a politician cannot be accepted at face value. Throughout history, we’ve been subjected to a wide variety of catch phrases that were used to deceive the general population. Most recently these range from trickle down economics to election integrity. We also suffer from the politics of destruction as childish coercive labeling is used to derail any sincere attempt to elevate the political discourse: Terms like repugs and libtards are now in common use.
One of the biggest ongoing deceptions involves simple misnomers. The term packing is generally understood to mean to fill a container of a given size. One might pack a suitcase or cram a large number of things into a given space, such as when a makeshift shelter is packed with beds jammed side by side. Of course, once a politician exerts their distorting influence upon the language of the realm, the meanings become contorted and decidedly self-serving.
When U.S. President Franklin D. Roosevelt wanted to add more justices to the U.S. Supreme Court, in order to obtain favorable rulings regarding New Deal legislation, his detractors described the initiative as court-packing. The sown confusion between packing and expanding persists even today and it will likely continue to distort the debate surrounding the prospect of expanding the Supreme Court to achieve an ideological balance.
It has become clear that, when one executive, over the course of one term, can replace one third of the the justices on the United States Supreme Court, the country has become highly vulnerable to tumultuous ideological swings. An administration that is able to fill three vacancies within a nine seat court is quite literally packing the Court. If ever, oh ever there was a time to consider expanding SCOTUS, it is now.
The U.S. Constitution does not define the size of the Supreme Court. In the Judiciary Act of 1869, Congress had established that the Supreme Court would consist of the chief justice and eight associate justices. The Judicial Procedures Reform Bill of 1937 was the actual name of the legislative initiative proposed by Roosevelt. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months that refused to retire.
During Roosevelt’s first term, the Supreme Court had struck down several New Deal measures as being unconstitutional. However, included among the cardinal precepts of the United States Constitution is the phrase “promote the general welfare.” Roosevelt sought to bring the court into better alignment with constitutional imperatives through the appointment of new justices that he hoped would rule his legislative initiatives did not exceed the constitutional authority of the government.
The bill came to be known as Roosevelt’s “court-packing plan,” a phrase coined by Edward Rumely. In 1915, Rumely bought, and became editor-in-chief and publisher of, the New York Evening Mail. He permitted his good friend Theodore Roosevelt to use the newspaper as his mouthpiece. In July 1918 Rumely was arrested and convicted of violation of the Trading with the Enemy Act. To get financing for the purchase of the newspaper. Rumely was accused of receiving financing from the German government, which Rumely denied, claiming, instead, he had received money to buy the paper from an American citizen in Germany. Either way, he was known to be sympathetic to Germany and had failed to report this when he received the money. President Coolidge granted him a presidential pardon in 1925.
Rumely was one of two founders of the Committee for Constitutional Government (CCG) who were newspaper men. The other, Frank Ernest Gannett, was an American publisher who founded the media corporation Gannett Company which now owns USA Today. The Committee opposed most, if not all, of the New Deal legislation. The organization was successful in opposing the Bills because of a large mailing list campaign targeting legal professionals. Rumely, as executive secretary, successfully dumbed down the political discourse by employing the simplistic and misleading label that characterizes court expansion as packing.
The number of cases heard annually, by the Supreme Court, has declined steadily over the past few decades. While a Court composed of Justices who share the same world view is likely to hear forty-two more cases per term than an ideologically fractured Court, a smaller docket also increases the risk that important cases will be left undecided. This, together with all the dark money that supports judicial nominations, confirmations, and accommodations puts the Court in a position to be “captured” by certain interests or actors leading to a loss of legitimacy for the institution whose strongest reservoir of power is its legitimacy.
If the Supreme Court is the unifier of law, then the Court should actively resolve as many circuit splits as possible and thus unify the law. The best way to achieve this is to expand the Court to twenty-one Justices. In that way more cases could be resolved and a minimum of seven justices could be assigned to hear and decide upon each one. This could be achieved without adversely impacting the time allotment the individual justices set-aside for their book tours.