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By Karina Ochoa Berkley

Sophomore, GW

On October 26, 2020, a bitterly divided Senate confirmed Amy Coney Barrett as the 115th justice to the Supreme Court, further cementing the court’s conservative shift for decades to come. The confirmation has prompted debate about the court’s apolitical nature, its authority, and its legitimacy. Critics of the appointment have proposed packing the courts, meaning adding seats to the bench to counter the court’s ideological imbalance.

Saving the Court’s legitimacy as an institution will require a radical reimagining of both the nature and structure of the Court, one that packing it could potentially help bring about. This article argues that the fundamental processes through which justices are appointed is inherently political. The myth that the court is apolitical has allowed the court to garner unconstitutional authority, and approaches to restructuring the court, like packing it, are productive in that they operate outside of that myth. 

It is critical to understand that despite political theorizations of what the judiciary should look like, at no point has the Court been apolitical, nor was it designed to be that way. Supreme Court Justices have always been appointed for political motives and their confirmation process has always been dictated by politicians for political purposes. By requiring Supreme Court Justices to be appointed by the President and confirmed by the Senate, the founding fathers designed the system to make the appointment process a highly political one. What is surprising is not the political nature of this process but rather how deeply embedded the myth that politics is not intimately involved with judicial appointments is. 

The popular idea that the Court is apolitical is, in fact, a fairly new one. For example, a majority of justices in the 1800s were “indeed chosen because of their previous partisan allegiances: Most nominees had served in federal, state or local political positions.” Only over the past 75 years, however, has the idea that the Court operates “outside politics” increased. Potential justices often try to hide their ideologies and highlight their supposed apolitical qualifications, most notably during the 2005 confirmation hearing of John Roberts where he insists that “justices are mere ‘umpires’ calling balls and strikes.”

Built on the notion that the Court will act outside of politics, it has accrued the power to directly influence major elements of American democracy from determining women’s rights to have an abortion to determining the outcome of presidential elections. Under the misguided belief that the Court is apolitical, Americans have bought into the idea that the court must remain above politics, even as the nomination and confirmation process become increasingly more partisan.

Unwrapping this mantle of non-partisanship could start with packing the courts. Packing the courts will not address the political nature of the court, it will not address the structural characteristics that make it political, nor will it address the undemocratically accrued power the Court has gained over the course of the century. Packing the courts, however, does acknowledge these structural characteristics of the Court, and works with them: liberals are concerned about a conservative majority bench so they want to add liberal justices to even the balance. Ignoring the political nature of the court has to end, and packing the court might be the way to do it. 

But again, it has to be iterated that packing the courts is not the most important nor the last thing that needs to be done. Our increasingly undemocratic society has led many of us to reconsider institutions and practices that have continued to reproduce racial and economic inequalities. 

Knowing the nature of these institutions, it is critical that we not lose sight of the most important decisions we make as citizens. We cannot depend on the courts, or on political leadership to deliver us our rights– because they won’t. In the words of Howard Zinn, “our culture tries to crowd out of our political consciousness everything except who will be elected President and who will be on the Supreme Court, as if these are the most important decisions we make.” These are absolutely not. They deflect us from the most important job citizens have: organizing, protesting, and continually demanding the abolition of undemocratic institutions.

Packing the Court is Good, Dissident Activism May Be Even Better

On October 26, 2020, a bitterly divided Senate confirmed Amy Coney Barrett as the 115th justice to the Supreme Court, further cementing the court’s conservative shift for decades to come. The confirmation has prompted debate about the court’s apolitical nature, its...

Maintain The Current Structure of the Supreme Court

When evaluating a policy proposal, we must ask ourselves the following questions: What are the goals? What are the trade-offs? What are the incentives this policy creates?  The goal of expanding the number of justices on the Supreme Court would be to alter the...
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