Presidential Commission on the Supreme Court of the United States
power to: [c]hange the size of the Supreme Court for more than a year by stealing a Supreme Court seat from President Obama in 2016[;] … [u]nilaterally change the Senate Rules to confirm Neil Gorsuch[;] … [d]iscard multiple credible allegations of sexual assault and perjury against Brett Kavanaugh and confirm him without legitimate investigation, and[;] [d]eny the will of the voters and confirm Amy Coney Barrett … .”); Presidential Commission on the Supreme Court of the United States 12–13 (July 20, 2021) (written testimony of Michael J. Klarman) [hereinafter Klarman Testimony] (discussing the confirmation tactics of the Republican-controlled Senate).
- ↑ Adam Liptak & Sheryl Gay Stolberg, Shadow of Merrick Garland Hangs Over the Next Supreme Court Fight, N.Y. Times (June 11, 2021), https://www.nytimes.com/2020/09/19/us/ginsburg-vacancy-garland.html.
- ↑ See Lisa Mascaro, Barrett Confirmed as Supreme Court Justice in Partisan Vote, Associated Press (Oct. 26, 2020), https://apnews.com/article/election-2020-donald-trump-virus-outbreak-ruth-bader-ginsburg-amy-coney-barrett-82a02a618343c98b80ca2b6bf9eafe07; David Cohen & Josh Gerstein, Justice Ruth Bader Ginsburg Dies at 87, Politico (Sept. 18, 2020), https://www.politico.com/news/2020/09/18/justice-ruth-bader-ginsburg-034990.
- ↑ See, e.g., 163 Cong. Rec. S6914 (daily ed. Oct. 31, 2017) (statement of Sen. Jeff Merkley, D-OR) (“We are seeing the President engaged in a zeal to pack the court with extreme rightwing ideologues and to ram them through this confirmation process without due review.”). Such efforts to apply the “court packing” label to actions other than the outright addition of seats to courts were contrarian, but they were not altogether unprecedented. The term “court packing” had been invoked to criticize President Obama’s swift appointment of three judges to the D.C. Circuit upon the Senate’s elimination of filibusters for lower court nominations. See Louis Jacobson, Is Barack Obama Trying to ‘Pack’ the D.C. Circuit Court of Appeals?, Politifact (June 5, 2013), https://www.politifact.com/factchecks/2013/jun/05/chuck-grassley/barack-obama-trying-pack-dc-circuit-court-appeals. The term was also used to criticize President Ronald Reagan’s and President George H.W. Bush’s nominations to the Supreme Court. See Grove, supra note 54, at 514; see also Id. at 512–17 (tracing the use of “court packing” as a political epithet from the 1950s through 2017). See generally Herman Schwartz, Packing the Courts (1988).
- ↑ See Charlie Savage, On the Left, Eyeing More Radical Ways to Fight Kavanaugh, N.Y. Times (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/us/politics/democrats-kavanaugh-supreme-court.html.
- ↑ See E.J. Dionne, Opinion, Enlarging the Supreme Court Is the Only Answer to the Right’s Judicial Radicalism, Wash. Post (Oct. 28, 2020), https://www.washingtonpost.com/opinions/the-high-cost-of-confirming-amy-coney-barrett/2020/10/24/8d5a236a-156f-11eb-bc10-40b25382f1be_story.html; Press Release, Sen. Ed Markey, Expand the Supreme Court: Sen. Markey and Reps. Nadler, Johnson, and Jones Introduce Legislation to Restore Justice and Democracy to Judicial System (Apr. 15, 2021), https://www.markey.senate.gov/news/press-releases/expand-the-supreme-court-senator-markey-and-reps-nadler-johnson-and-jones-introduce-legislation-to-restore-justice-and-democracy-to-judicial-system; Michael Hiltzik, How a New Court-Packing Scheme Could Save the Supreme Court from Right-Wing Domination, L.A. Times (July 2, 2018, 6:30 AM PT), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-scotus-20180629-story.html.
- ↑ Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death Revives Talk of Court Packing, N.Y. Times (Sept. 19, 2020), https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html.
- ↑ In addition to greater media coverage, the topic of Court reform also captured the public’s attention during that period. Google Trends, which captures patterns in Google search queries, recorded dramatic spikes in searches for “Court packing” and related terms between Justice Ginsburg’s death and Justice Barrett’s confirmation. See Google Trends: “Court Packing,” “Pack the Court,” “Pack the Supreme Court,” Google, https://trends.google.com/trends/explore?date=today%205y&geo=US&q=court%20packing,pack%20the%20court,pack%20the%20supreme%20court (last visited Nov. 14, 2021).
- ↑ Presidential Commission on the Supreme Court of the United States 1–2 (July 20, 2021) (written testimony of Nan Aron, Alliance for Justice) [hereinafter Aron Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Aron-Testimony.pdf (“[T]he Court’s legitimacy has already been tarnished [] after decades of partisan takeover. … Given this reality, it is clear that reform is in fact necessary to restore.”); Id. at 1–5, 11–12 (further arguing that “the most effective way to restore balance to our Court is through expansion”).
- ↑ See id. at 3–4, 7, 15 (asserting that the Court could, among other things, “wipe away reproductive rights, in spite of decades of precedent and overwhelming public support for those rights,” “continually block[] the people’s
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