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Opinion: Why history shows 'court packing' isn't extreme

October 12, 2020. Summarized by summa-bot.

WASHINGTON, DC - SEPTEMBER 28: The U.S. Supreme Court stands on September 28, 2020 in Washington, DC. This week Seventh U.S. Circuit Court Judge Amy Coney Barrett, U.S. President Donald Trump's nominee to the Supreme Court, will begin meeting with Senators as she seeks to be confirmed before the presidential election. (Photo by Al Drago/Getty Images)

Historian Nicole Hemmer says court packing — as both a phrase and a historical precedent dating back to FDR and John Adams — obscures more than it reveals about the current debate over the size of the Supreme Court. She argues that history isn't an excuse to ignore the unique conditions of today's looming crisis over court expansion and reform.

But "court packing" — as both a phrase and a historical precedent — obscures more than it reveals about the current debate over the size of the Supreme Court.

That's because the parallel to President Franklin Roosevelt's efforts to change the court's size don't fit the current situation, and the broader history of court expansion bolsters the case for expanding the court now.

In many cases, the changes reflected fluctuations in the number of federal court districts.

In fact, the first change to the Supreme Court came as part of the "midnight judges" scandal of 1801, when Federalists doubled the number of district judges and shrank the size of the Supreme Court from six to five after they lost the election of 1800, hoping to install as many as their allies as possible before Thomas Jefferson became president.

First, the call for a change to the court's size is not a response to specific rulings that Democrats disagree with.

That makes a more accurate precedent for the court-expansion debate not the 1937 attempt, but 1802, when Congress returned the court to six seats after Adams attempted to take a seat from Jefferson and pack the lower courts with his allies.

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