If Republicans Confirm New Justice, Scholars Say Democratic Court Packing Is Possible

With President Trump soon to nominate a replacement for Justice Ruth Bader Ginsburg on the Supreme Court, some Democrats are returning to an idea that hasn’t been seriously proposed since the days of Franklin D. Roosevelt: increasing the number of justices on the Supreme Court.

Democratic leaders have long rejected the idea of packing the court, in large part due to fears of Republican retaliation. But with Ginsburg’s death — and what many see as Republican hypocrisy in calling for a vote now after they refused to hold a hearing on Merrick Garland during the last year of Obama’s presidency — the once radical idea has started to gain traction.

The Supreme Court has had nine justices for over 150 years. But the Constitution doesn’t require nine; the number is set by Congress. And leading constitutional scholars tell NPR that if Republicans do push through a new justice and then lose the Senate and presidency in the upcoming election, Democrats will face tremendous political pressure from the base to pack the courts.