Can Congress “Pack” the Supreme Court? Part 2
This exclusive report was provided to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson, Ret.)
Erwin Chemerinsky cheers on the discredited idea of “court packing” in the Los Angeles Times; “One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.”
Since 1869, the United States Supreme Court has consisted of 9 judges. “Congress can shape the size of the Court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new Justices. (After Ulysses Grant was elected President in 1868, the number was bumped back up to nine, where it has remained ever since.)”
“The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a Court that was striking down much of his New Deal legislation. After his landslide re-election in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15…(d)espite his popularity, and the overwhelming control of the Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice-president, John Garner, fought it. The Democratic leader in the Senate rejected it….(t)he proposal died in Congress before a vote was taken.”
Unfortunately, unlike FDR, a President Biden would not be opposed by a Vice President Harris in anything, least of all a scheme to pack the Supreme Court with new progressive judges, nominated to counterbalance the conservatives who would be in the majority were Trump’s nominee to be approved by Congress. This leftist dream scenario is entirely possible.
In response, Congressman Doug Collins (R-Ga) has plans to introduce “a constitutional amendment to prohibit a change to the size to the Supreme Court until 10 years after enactment of any legislation that would alter the number of seats on the high court.” However, as noted by Fox News, “(t)here’s a high bar to passing an amendment: In order to pass, a constitutional amendment must receive approval from two-thirds of the House and Senate, as well as ratification from three-fourths of all states, or 38 out of 50.”
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All politics is cyclical. Today we have a Republican President – more likely than not, that President will be followed by a Democrat, who will then be followed by a Republican. Jimmy Carter, a Democrat, was followed by Ronald Reagan. After George HW Bush (who, it has been argued, was an extension of the Reagan presidency) came Bill Clinton, another Democrat, who was followed by George W. Bush. After Bush came Barak Obama, who has been followed by Donald Trump.
During Obama’s presidency, “Senate Democrats — then in the majority — triggered the nuclear option for the first time…Democrats led by Senate Majority Leader Harry Reid of Nevada, changed the rules so that lower court and Cabinet nominees could be confirmed with a simple majority, rather than the typical 60-vote threshold.”
At the time, Democrats believed they could rely upon a “permanent majority” – a nonsensical notion, but one that lead the then-Democratic majority to make a rules change that has been used against them repeatedly during the Trump Administration. “(T)he total number of (federal) judges confirmed under (the Trump) administration (is) 216, which represents nearly one-fourth of all active (federal) judgeships.”
All of these judges have been approved by simple majority vote.
Thus, were a Democratic Administration to “pack” the Court in 2021, in 2032, a Republican Administration could easily either appoint more Supreme Court judges, or scale back the number then-sitting. Significant damage will have been done, no doubt. But the cyclical nature of our system will endure.
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