Expanding the Supreme Court isn’t court-packing

Rep. Andy Biggs (R-Ariz.) is alarmed that Democrats might expand the membership of the Supreme Court the next time they hold the presidency and Congress. His Republican colleagues on the House of Representatives Judiciary Committee all agree with him. 

Earlier this month, on a straight party-line vote, the committee passed a proposed constitutional amendment to freeze the court at nine justices, which would, as Biggs put it, prevent Democrats from “threatening to pack this iconic American institution.”

It is true that leading Democrats, including former Vice President Kamala Harris, have welcomed “ideas, for example, that are about Supreme Court reform, including the notion of expanding the court.” But it is wrong to call it court-packing. In fact, the Supreme Court has already been strategically stacked by President Trump and his Senate allies, entrenching an illegitimate conservative supermajority.

Adding four seats under the next Democratic trifecta would actually be unpacking the court. 

After Justice Antonin Scalia died on Feb 13. 2016, President Barack Obama nominated Merrick Garland to replace him, under Article II of the Constitution.

Senate Majority Leader Mitch McConnell (R-Ky.) deployed Senate rules so that Garland did not even get a committee hearing, let alone a vote on the Senate floor. Because it was an election year, McConnell said, the Supreme Court vacancy “should not be filled until we have a new president.”

Scalia’s seat remained empty, leaving an eight-member court for more than a year. Trump’s nominee to replace him, Neil Gorsuch, was confirmed on April 7,........

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