Not Even FDR Could Pack the Supreme Court
It would take more than a threat to abortion rights to expand the court beyond nine justices.
The last time the Supreme Court was in danger of packing, in 1937.
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As President Donald Trump and Senate Majority Leader Mitch McConnell move to nominate and confirm a conservative Supreme Court justice, progressive Democrats are increasingly talking about packing the Supreme Court in retaliation — increasing the size of the court and adding new, liberal justices to the bench. At a minimum, the idea rests on the heroic assumption that Democrats will win the presidency and both houses of Congress. But that’s not all. History demonstrates the grave difficulty of successfully mustering even majority-party support to add new Supreme Court seats.
To pack the court, Democrats would need more than just the prospect of a conservative court. They would need a sustained argument that the court had become fundamentally illegitimate by its composition or its conduct.