History
The Politics of Judicial Appointment and Court Packing
Quick fact
In 1937, U.S. President Franklin D. Roosevelt proposed adding up to six extra justices to the Supreme Court after it struck down his New Deal laws. The plan was widely condemned as 'court packing' and ultimately failed, but it remains the classic example of how changing the number of judges can be a political weapon.
Why this is interesting
You know that judges are supposed to be impartial, but did you know that who becomes a judge is one of the most political decisions a leader can make? Why would expanding the number of judges ever be seen as a threat to democracy?
Read the full explanation
Understanding The Politics of Judicial Appointment and Court Packing
Judges in many countries are not elected; they are appointed by political leaders. This creates a tension: judges must be neutral arbiters of the law, but the people who pick them are often motivated by politics. To prevent one side from stacking the courts, constitutions usually set up a system of checks and balances. In the United States, the President nominates judges, but the Senate must confirm them by a majority vote. This 'advice and consent' process is meant to force compromise: the president can't just pick anyone, and the Senate can't force the president to pick someone they don't want. However, the system works only if both sides are willing to cooperate. When they aren't, the process becomes a battleground. Parties fight over who gets to make nominations, delay confirmations, and sometimes try to change the rules itself. Imagine a sports match where the referee is chosen by the home team. If the away team thinks the ref is biased, they'll complain. But what if the home team also tries to add more referees to the game? That's court packing – changing the number of judges to change the outcome of future decisions.
A deeper explanation
The politics of judicial appointment and court packing revolve around power and legitimacy. When a political party controls the presidency and the Senate, it can fill vacant judgeships with like-minded judges, influencing court decisions for decades. But this power is limited by the number of vacancies. One way to override that limitation is to create more seats on the court – 'packing' it. This is so controversial because it openly violates the ideal of judicial independence, making the court look like a tool of the party in power. Yet, the same effect can be achieved in subtler ways. For example, refusing to confirm a president's nominee until after the next election can leave a seat empty, letting the next president fill it. The 'Merrick Garland rule' is a recent example where the Senate refused to consider President Obama's Supreme Court nominee, claiming it was too close to a presidential election. This shows how procedural tactics, not just changing the number of seats, can shape the court. Both packing and blocking are strategies to ensure that the court aligns with a particular political vision. The stability of a constitutional system depends on a shared consensus that such tactics are illegitimate. When that consensus breaks down, every appointment becomes a political battle, undermining public confidence in the courts' impartiality.