Amy Coney Barrett has been nominated by President Donald Trump as the late Justice Ruth Bader Ginsburg’s replacement. Many liberals and independents alike dread her potential approval as the ninth Supreme Court Justice.
Even before RBG's death, conservatism was already the dominant political belief held by five out of nine justices. Now that she is gone, Democrats find themselves at a significant, but not a large, minority in the Supreme Court.
In response, House Majority Leader Chuck Schumer suggested a court-packing plan to prevent future Supreme Court rulings to be in favor of Republicans. He proposed expanding the number of justices from nine members to 13 in order to “repair the wound inflicted on our Constitution by the Republicans’ refusal to recognize the will of the electorate.”
Schumer refers to President’s Trump’s swift action of finding a replacement for Ginsburg a few days after her death. He criticizes this action as failure to recognize the popular sovereignty to elect a president in November who will then appoint a justice. By appointing a last-minute conservative justice, he argues that Trump’s decision is undemocratic and should be left to the next democratically elected president instead.
Ironically, Democratic presidential nominee Joe Biden stated in a New York Times op-ed that there is no law in the Constitution that explicitly denies the president’s ability to appoint a Supreme Court Justice in his last year, and that if he were part of the Senate Judiciary Committee, he would accept him or her “even a few months before a presidential election."
There are no explicit amendments in the Constitution which ban changing the number of Supreme Court justices. According to the Supreme Court’s official website, "The Constitution places the power to determine the number of Justices in the hands of Congress.”
But this does not mean that there are limits to the current president’s ability to select a new Supreme Court Justice before his term ends in his last year. There is also no constitutional law that forbids President Trump from selecting Barrett in his possible last weeks as president.
Barrett’s chances of getting approved by the Senate seem likely, given its Republican majority. Democrats and independents fear that this could be the end of “Roe v. Wade” and the Affordable Care Act, considering that she has signed a public letter that declared her support for the “value of life from conception to natural death.”
If Democrats do seek to implement a new court-packing plan, the president will need to approve or veto the Court's expansion. Given the fact that neither Biden nor Trump discussed this proposal in the first 2020 presidential debate, it is likely that both candidates would simply veto a court-packing plan.