The pejorative phrase “court packing” flows from a couple of questionable premises. First, that there is some morally or legally correct limit on the number of judges that should sit on the U.S. Supreme Court, and second that the use of political power to shift the balance of the court is unseemly. Neither is accurate, since it’s completely within the legitimate power of Congress to pass a law changing the size of the Supreme Court, or any other federal court. In reality, what the outcry against court packing reveals is a preference for the status quo, which not coincidentally entrenches white male minority rule. While the latest round in the court-packing fight has been touched off by the nomination of a white woman to the Supreme Court, make no mistake: From top to bottom, the federal courts have already been packed—with white men. Given how little the courts reflect the increasingly diverse American population, it’s not changing the size of a single court that will bring about a crisis of legitimacy. The crisis is already here.
White men comprise just 30% of the U.S. population, but have been overrepresented in the federal courts since the creation of the judiciary. The Supreme Court is the most visible example—through its centuries-long history, all but six of the 114 justices to sit on the court have been white men. Today, the court continues to over-index on white guys, with five out of eight justices from that demographic. But the representational problem extends to every level of the federal judiciary. After centuries of racial and gender homogeneity, the judiciary took its most significant strides toward diversification under President Barack Obama, who appointed larger proportions of female and BIPOC judges than any president in history. But Obama’s approach was an anomaly in presidential history, one which the Trump administration has eagerly worked to neutralize. Guided by Mitch McConnell and the Federalist Society, Trump has filled 200 judicial vacancies with 85% white and 76% male appointees. Today, nearly 60% of all sitting federal judges are white men. As a result, not only have the past and present Supreme Court been packed with white men, so too has the pipeline for future justices from the Courts of Appeals. Of all the justices appointed in the last 50 years from any demographic, all but four boasted service on one of the lower federal courts, and no judge of color has ever been appointed to the Supreme Court without having first served on a U.S. Court of Appeals. So even if a president comes along who’s more inclined to appoint justices that better reflect the American population, the overwhelming whiteness of today’s judiciary means a smaller pool of potential justices of color who’d be considered “qualified,” well into the future.
Absent some kind of intervention, these demographic realities mean the Supreme Court and the entire federal judiciary are and will continue to be controlled by white men whose decisions commonly ratify the ability of other white men to impose their will on the rest of us. In the hands of the current white supremacist presidential administration and Congress—another overwhelmingly white and politically unrepresentative body—that kind of judiciary is a convenient tool for cementing the white conservative policy agenda. Just this week, the Supreme Court helpfully cut off the census count early, kneecapping efforts to accurately count non-white and hard to reach populations, and a Court of Appeals blessed voter suppression tactics in Texas that will disproportionately affect people of color. But the unrepresentative nature of the federal courts isn’t a new problem.
Although courts are often held up as the last line of defense for the rights of people who aren’t white cis men—Black, Indigenous, and people of color, women, and LGBTQ+ folks—the reality has always been somewhat more complicated. While some of the most cherished Supreme Court decisions have shielded marginalized communities from having our rights subject to the whims of powerful white men—Brown v. Board of Education, Obergfell v. Hodges, and Roe v. Wade—more often, the court has handed down decisions that enact significant harm on everyone else: Korematsu v. United States, which permitted the internment of Japanese Americans during World War II, Shelby County v. Holder, which gutted the Voting Rights Act, U.S. Forest Service v. Cowpasture River Preservation Association, which greenlighted the construction of an oil pipeline beneath part of the Appalachian Trail, over the protests of the Indigenous, Latinx, and Black communities who call the area home, and Burwell v. Hobby Lobby, torpedoing birth control access.
Ultimately the courts are and always have been just as stark an example of minority rule as the Senate, whose composition skews power toward whiter and less populous states. The federal courts are also just as political—the very fact that judges and justices are nominated and then confirmed by the two more nakedly political branches of the U.S. government renders any argument for the courts as neutral bodies absurd on its face. Given that reality, it’s just as illegitimate and undemocratic for the federal judiciary to be demographically captured by white men as it is for any other government body. For an institution that claims to serve and do justice on behalf of the people, expecting it to reflect the composition of those people is the bare minimum. So, if expanding the size of the federal judiciary—from the Supreme Court on down—is what it takes to create a reflective court system, then let’s get packing.