A recent article from HuffPost claimed that Sen. Ted Cruz lied in denying that Republicans had engaged in court packing when they controlled the White House and Congress during the Trump administration.
The article—titled “‘Gaslighting 101’: Sen. Ted Cruz Ripped For One Of His Biggest, Boldest Lies Yet”—includes a video clip of Cruz during a press conference April 22, speaking about recent Democratic attempts to increase the size of the Supreme Court. The video shows Cruz saying: “You didn’t see Republicans, when we had control of the Senate, try to rig the game. You didn’t see us try to pack the court. There was nothing that would have prevented Republicans from doing what they’re doing other than respect for the rule of law, other than basic decency, other than recognizing that democracy matters and packing the court and tearing down the institutions that protect our rights is fundamentally wrong.”
The video then shows text reading: “When Republicans controlled the White House and Congress, they loved ramming judges through the system, including at least 174 district court judges and 54 appeals court judges. Senate Republicans also confirmed three Supreme Court justices, including Amy Coney Barrett. Barrett, nominated after Justice Ruth Bader Ginsburg died, was confirmed a week before the 2020 election. Many called out then-Senate Majority Leader Mitch McConnell (R-KY) for rushing Barrett onto the bench, considering he declared in 2016 that an outgoing presidency shouldn’t fill a Supreme Court vacancy.”
The article stated that “Given those very recent events, Cruz’s critics weren’t buying his claim that Republicans hadn’t rigged the system to stack the court” and linked to several tweets from detractors.
Until recently, “court packing” has been universally understood to refer to the practice of adding judicial seats to a court in order to change the ideological balance of the court. The Constitution does not mandate how many justices must serve on the Supreme Court, and the size of the court has changed several times over the course of its history. The most notable example of an attempt at court packing came during the Franklin Roosevelt administration, when Roosevelt, upset the Supreme Court was ruling against New Deal legislation, proposed increasing the size of the Supreme Court by up to six seats. The proposal failed, leaving the court at nine justices, the number at which it remains today.
Trump did indeed appoint three Supreme Court justices, 174 district court judges, and 54 appeals court judges during his presidency. He did not, however, engage in court packing as traditionally understood: Trump filled vacancies in those courts, a prerogative and responsibility of the incumbent administration. Obama carried out this responsibility as president during his time in office as well, and appointed two Supreme Court judges, 268 district court judges, and 55 appeals court judges, though his appointments stretched over the course of two terms.
There is wide fluctuation between how many judicial appointments are made by presidents, depending entirely on how many openings there are at any given time. While Trump’s number of appointments seems high given that he served only one term, fellow one-term presidents George H.W. Bush and Jimmy Carter saw similar numbers of appointments confirmed, with Carter filling even more seats than Trump—187 and 261 respectively to Trump’s 226, though Carter did not appoint any Supreme Court justices. Bush was able to appoint two Supreme Court justices in his one term in office.
It was only recently that attempts to expand the definition of “court packing” beyond its traditionally understood meaning of increasing the size of the court to include constitutionally dictated powers of filling judicial vacancies. Following Republican lawmakers’ decision to proceed with the appointment hearings for Justice Amy Coney Barrett, Sen. Richard Durbin described Republican activities as court packing, saying, “The American people have watched the Republicans packing the court for the past three and a half years, and they brag about it.” Other Democratic politicians—including President Joe Biden—have made the same claim about Republican appointees within the past two years. Dictionary.com changed the definition of the term on its website in December 2020, citing evolving language.
The appointments made during the Trump administration may have changed the ideological composition of the courts, but this was achieved not through adding seats to courts but through filling open seats. Thus, whether or not this is court packing depends on which definition of the word you’d like to use: the old or the new.
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