FACT CHECK: Justice Barrett Wasn’t Asked To Take A Position On Court Packing

Judge Ketanji Brown Jackson Cited A Nonexistent Precedent Supposedly Set By Justice Barrett At Her Confirmation Hearing, But The Fact Is That Justice Barrett Was NOT ASKED To Take A Position On Democrat Proposals To Pack The Supreme Court


SEN. DICK DURBIN (D-IL), Senate Judiciary Committee Chairman: “Now that question on court packing was posed to Amy Coney Barrett, justice on the Court, when she appeared before this committee. She was asked about it. She said, and I quote, ‘could not opine on it.’ And on many other policy issues then-Judge Barrett said repeatedly she could not share her views. Stating, and I quote, ‘I will not express a view on a matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role.’ … So Judge Jackson, if a senator were to ask you today about proposals about changing the current size of the Supreme Court, what would your response be?”
JUDGE KETANJI BROWN JACKSON: “Senator, I agree with Justice Barrett in her response to that question when she was asked before this committee. Again, my north star is the consideration of the proper role of a judge in our constitutional scheme. And in my view judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court. So I agree with Justice Barrett.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)


During Her Confirmation Hearing, Justice Barrett Was Not Asked About Her Position On Packing The Supreme Court

SEN. MIKE LEE (R-UT): “Does the Constitution say anything about the size of the Supreme Court?”
THEN-JUDGE AMY CONEY BARRETT: “The Constitution does not. That is a question left open to Congress. It's my understanding that it's been nine for about 150 years, but that's as a matter of statute, not constitutional requirement.”
SEN. LEE: “It's statutory. It's a statutory decision, one that's stood for more than a century and a half. It's a decision, nonetheless, that has some bearing, could have some bearing on constitutional issues, correct?”
JUDGE BARRETT: “Insofar as there would be more decision makers on the court?”
SEN. LEE: “Yeah, if we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?
JUDGE BARRETT: “Possibly, but it's difficult for me to imagine what specific constitutional question you're asking. And of course, if there were one, I couldn't opine on it.”
SEN. LEE: “Of course, of course. There are strong reasons, I believe, why over the last more than a century and a half we've left that number at nine. As you point out, there's nothing in the Constitution that requires it…. There are nonetheless good, prudential reasons, reasons having to do with respect for the separation of powers between the three branches of government, reasons that have over the last 150-plus years left us to leave that number at nine. The last time, as far as I can tell, that there was any serious effort to move the number above nine was in the fall of 1936 when President Franklin D. Roosevelt … proposed packing the court. And let me explain what I mean by packing the court here. What I mean when I refer to this is increasing the number of seats on the Supreme Court and doing so, by statute, with the intent of altering the composition of the court for short-term political gain. That's what FDR wanted to do…. I think it would have been a colossal mistake. Joe Biden himself as a U.S. senator, as a member of this body, in a proceeding of this committee in 1983, gave a rousing speech that I recommend to all talking about that very thing, acknowledging that the Constitution doesn't require it, but our respect for the separation of powers really ought to lead to us sticking to the number nine. Don't pack the court.” (U.S. Senate Judiciary Committee Hearing, 10/13/2020)



Related Issues: Judicial Nominations, Supreme Court