court packing

On September 22, 2020, searches for court packing increased 23,225% compared to the previous week following the death of U.S. Supreme Court Justice Ruth Bader Ginsburg.

The second woman appointed to the Supreme Court, where she served as an associate justice for over 27 years, Ginsburg died from complications caused by metastatic pancreatic cancer at the age of 87.

Popularly referred to as “Notorious RBG” for her trenchant dissenting opinions, Ginsburg leaves behind a jurisprudence advancing gender equality and women’s rights—and a liberal legacy that transformed American life and law in her long career as a public servant.

In the wake of her passing, the Republican vow to fill her seat despite the precedent they followed not to fill a vacancy in 2016 led some political pundits, journalists, and observers to raise the topic of court packing.

Court packing, in the sense of adding more justices to the Supreme Court, has been discussed as one way Democrats might counteract an enduring conservative majority on the court were they to win back the Senate and White House in 2020. This meaning of court packing is historically associated with President Franklin Delano Roosevelt’s attempt in the late 1930s. However, other efforts to rebalance or manipulate the ideological composition of the court have also been called court packing, historically—most notably by William Rehnquist during the 1984 presidential election cycle. 

Why was Ginsburg dubbed notorious? How is that word different from infamous? And how does dissent compare to protest? We issue some lexical rulings on the important differences in our articles, “’Infamous’ vs. ‘Notorious’: Why Is There A Difference?” and “’Dissent’ vs. ‘Protest’: Why Choosing The Right Word Matters.”

Ruth Bader Ginsburg died fewer than two months out from a presidential election in the midst of an already heated, high-stakes campaign between President Donald Trump and his Democratic contender, former Vice President Joe Biden.

Learn more about the term vice president in our Trends And News article on the name of this second-in-command office.

In February 2016, nearly nine months out from the fraught presidential contest between Hillary Clinton and Donald Trump, Antonin Scalia, a forceful member of the Supreme Court’s conservative block, suddenly died. Kentucky U.S. Senator and Majority Leader Mitch McConnell notoriously blocked President Obama’s nomination of Merrick Garland, maintaining that it’s Senate tradition not to fill a Supreme Court seat during a presidential election year. Instead, the winner of that election should get to decide to reflect the will of voters.

(If you recall Government class, the U.S. Constitution stipulates that the president nominates Supreme Court Justices and the Senate confirms them.)

Despite following that precedent, in 2020 McConnell promptly (and hypocritically, many criticized) vowed to fill Ginsburg’s seat. President Trump committed to nominate a justice and most Republican senators—notably including South Carolina Senator Lindsey Graham—pledged to move forward on confirmation.

More from Government class, with a little U.S. History coursework mixed in: the Constitution doesn’t specify how many justices serve on the Supreme Court. In fact, the Supreme Court began with 6 justices and once had as many as 10 in 1863.

Congress fixed the number to nine in 1869, where it has remained ever since, but it can pass new legislation changing that total. President Franklin Delano Roosevelt infamously attempted to expand the court in 1937, which was criticized by both parties as just an effort to ensure his New Deal was enshrined into law—and which was called court packing. A pejorative term, court packing characterizes Roosevelt’s plan as a way of packing (that is, to stuff, load up, or cram)  the court with up to six additional justices.

If Democrats win back the Senate and Presidency in 2020, they could enact legislation to increase the number of Supreme Court justices as an answer to what some feel is Republicans effectively “stealing” two Supreme Court seats from them. Critics of such a plan—which most Democrats don’t currently support—refer to the possibility as court packing.