Talking Points

The GOP laid a trap for Ketanji Brown Jackson. Don't fall for it!

What does Ketanji Brown Jackson think about packing the Supreme Court?

It doesn't matter in the slightest.

Senate Republicans are expected to make court-packing an issue at confirmation hearings for Jackson, President Biden's nominee to replace Justice Stephen Breyer on the high court. (The hearings begin today.) Senate Minority Leader Mitch McConnell (R-Ky.) has been signaling his interest in the issue for weeks. When asked if she would "defend the court" by announcing her opposition to adding seats, McConnell said, "she wouldn't do that." 

Over the weekend, Adam J. White of the conservative American Enterprise Institute wrote an op-ed for the Wall Street Journal, saying Jackson's views on the matter are critical to defending the court's legitimacy. "Senators should take time to explore her view of the sources of the court's legitimacy, and to confirm that she shares Justice Breyer's belief that court-packing would be constitutionally ruinous," White wrote. "Together senators and the nominee can remind Americans what distinguishes judges from politicians — and why that difference matters."

But pressing Jackson on court-packing would do the opposite of what White intends: It would force her to take a stand on a topic that's best left to politicians.

Why? Because the Supreme Court can't pack itself. It's widely understood by now that the number of seats on the court can be changed — the current number of nine has been in place since 1869 — but that can only be done by Congress and the president working together. It's a political question for the political branches to settle. The only reason to press Jackson on the issue is to draw her into a political battle that isn't in the purview of the job that she's seeking. It's a trap. 

Some recent justices, including Breyer and the late Ruth Bader Ginsburg, have argued against packing the court, and that was their prerogative. Maybe Jackson will choose to weigh in sooner or later — and maybe she even has an opinion — but given how much Supreme Court nominees avoid expressing their views at confirmation hearings, there's no real reason she should feel required to do so.

If she's confirmed, Jackson will be the third liberal justice on a Supreme Court dominated by six conservatives. She won't change the balance of the court at all, which presents something of a political problem for her critics. Republicans have spent generations making political hay out of court appointments, but now they have everything they want — a right-leaning supermajority and, soon, the effective end of Roe v. Wade — it may be more difficult for them to generate voter enthusiasm with such fights. Court-packing remains a salient issue among voters. That doesn't mean Jackson has to play along.