BY MICHAEL CADIGAN KENTUCKY

LOUISVILLE, Ky. — If Amy Coney Barrett is confirmed this month, there will be a 6-3 conservative majority on the Supreme Court.

Both Jonathan Shaub, professor at the University of Kentucky College of Law, and Eugene Mazo, professor at the University of Louisville School of Law, said this could lead to political parties adding more justices until an ideological 50/50 is reached.

“This will start a never-ending game of one-upmanship and just turn the Supreme Court into a political institution,” said Shaub.

For the first 80 years of its existence, the Supreme Court fluctuated in size from as few as five to as many as 10 justices before settling at the current number in 1869.

Barrett’s appointment and confirmation come just a short time before the presidential election. The pressure and scrutiny are even higher, especially with Supreme Court Justices serving lifetime appointments.

“It does also reflect how high the stakes are for each nomination given they come around every eight to 10 years as the justices live longer and are healthier,” said Shaub.

With the late Justice Ruth Bader Ginsberg’s passing, President Donald Trump’s nomination, and Barrett’s confirmation process, Shaub says that other measures might be explored that don’t involve court-packing.

“The threat of court-packing or the discussion of it could lead to other reforms like term limits,” said Shaub. “That would have a better chance of succeeding without the same effect on the legitimacy of the court.”

The reforms would mean changing the Constitution. Currently, the number of justices is dictated by a federal statute. Mazo believes both Democrats and Republicans should refrain from adding more justices.

“If we are going to have a tit for tat society, that’s not the best thing for all Americans,” said Mazo. “It’ll just be the best thing for party and what we see historically is that one party is in power for a short time then we hold elections and then someone else wins.”

President Franklin Delano Roosevelt threatened to pack the Supreme Court in 1937 after it overruled much of his New Deal legislation. His threat caused one justice, Owen J. Roberts, to play ball. It is referred to as the “switch in time that saved nine.”