Tag: Court Packing

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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As a more practical matter, were a Democratic President to carry through with any scheme to increase the number of Supreme Court Justices, there is a good chance that any such plan would come back to eventually haunt the left.

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.

Photo: Pixabay

This exclusive report was provided to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson, (Ret.)

Whether you are on the left or the right, the passing of Supreme Court Justice Ruth Bader Ginsberg is a historic event.  For the left, Justice Ginsberg was an admirable figure, and a pioneering feminist.  For those on the right, “Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.” 

In fact, the death of Justice Ginsberg has exposed yet another fault line in American political thought.  For the left, a judge should be an activist – that is, “(t)he courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny.”    Meanwhile, conservatives believe that “the role of judges is to enforce the Constitution and laws that conform to the Constitution . . . to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further.” 

In other words, one side wants judges to defer to the will of the legislature, who are the duly elected representatives of the people, and interpret laws as they are written.  the other wants judges to temper and “reinterpret” the acts of the legislature.  However, in “tempering” the acts of any legislative branch, an activist judge ends up substituting their own views for those of the elected officials who made those laws.  Herein lies the real problem of activist judges –  “they seek to impose their personal preferences. But a judge who looks beyond the text of the Constitution ‘looks inside himself and nowhere else.’” 

President Trump has made it a point to nominate judges to both the lower federal courts and the Supreme Court who are strict constructionists – “all of whom will faithfully uphold our Constitution as written,” in the President’s own words.  Keeping this promise is exactly what the left fears.

Without a doubt, the person named to replace Justice Ginsberg will not be an activist in any way.  Another legally conservative judge will tilt the balance of the high court in favor of strict construction of the law, or as Ian Millhiser frets in  in Vox, “(l)ong after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.”  

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This fear would explain the over-the-top reaction of those on the left to the death of Justice Ginsberg, and the prospect of her being replaced by President Trump prior to the November election.  Senate Minority Leader Chuck Schumer (D-NY) summed up the mood of most of the left when he said “Everything Americans value is at stake. Health care, protections for preexisting conditions, women’s rights, gay rights, workers’ rights, labor rights, voting rights, civil rights, climate change and so much else is at risk.” 

This panic has led to an old scheme made new again – “packing” the Supreme Court with new judges. 

Jeff Greenfield fantasizes out loud about this possibility in Politico;  “It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court… (w)ithin days, or moments, of the start of new Senate session, Majority Leader Chuck Schumer announces his intention to move legislation that would expand the Supreme Court from nine to 13 members, to ‘repair the wound inflicted on our Constitution by the Republicans’ refusal to recognize the will of the electorate.’ The Senate and House pass the bill, and President Joe Biden signs it on Inauguration Day.”  

The Report Concludes Tomorrow

Photo: Pixabay