Even before President Trump nominated Amy Coney Barrett to fill a Supreme Court vacancy, Democrats openly championed the idea of expanding the number of justices to 15. With the Senate confirmation hearings underway, court packing is now an emotionally charged issue on the campaign trail.
As the issue has elbowed its way into the headlines, the media and some politicians on both sides of the aisle have made misleading statements about what the Constitution has to say about the Supreme Court. In fact, the Constitution is silent regarding the size of the court in Article III:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times, receive for their services, compensation, which shall not be diminished during their continuance in office."
In Section Two of Article III, the Constitution enumerates the cases to be adjudicated by the Supreme Court. There is no mention of how many justices will serve on the high court. The size of the court, now with nine justices, has evolved over many decades in America.
Congress tinkered with the number of justices seven times in the first 80 years to achieve partisan political goals. As a result, as few as five justices served under President John Adams and as many as ten under President Abraham Lincoln. Congress set the original Supreme Court at six justices in 1789.
A decade had barely elapsed before President Adams, a month before the presidential election, nominated and Congress confirmed a successor to Chief Justice Oliver Ellsworth in 1801. Then Adams and his allies passed the Judiciary Act of 1801 lowering the number of court justices from six to five.
However, no justices died before President Thomas Jefferson assumed office with six sitting justices. He added a seventh justice in 1807. Then President Andrew Jackson tacked on two members raising the number to nine justices in 1837, but twenty years later a court decision infuriated a sitting president.
President Lincoln, upset over the Supreme Court's 1857 decision in the Dred Scott case, added a tenth justice in 1863 in an effort to serve his political goals. Congress sliced the number to nine in 1869 under President Ulysses Grant in an act of political partisanship. For 127 years the court has stood at nine.
With that history as background, it can be unequivocally stated that Congress has the authority to change the size of the court with approval of the president. The Constitution does not prohibit it and the history of the U.S. is replete with examples of legislative action designed to alter the make-up of the court.
The last time court packing burst into public discourse was 1936, when President Franklin D. Roosevelt floated a plan to hike the size of the judicial branch to 15 justices after the court struck down New Deal laws. Opposition to Roosevelt's scheme was universal, including from many in his own party.
Roosevelt wisely pulled the plug on the idea. Today's efforts to resurrect court packing reeks of partisanship, just as past efforts been solely for political motives. As the nation's early history shows, once a single Congress monkeys with the court's size it emboldens future legislatures to do the same.
Justice Ruth Bader Ginsburg, whose death created the current court vacancy, opposed proposals to grow the number of jurists on the court. She said such a plan would make the court appear to be a partisan vehicle for politicians. In her words:
"It would be that--one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to," Ginsburg told National Public Radio (NPR) on July 24.
Even Democrat presidential nominee Joe Biden make it clear in 1983 that he had a dim view of court packing. He called fellow Democrat President Roosevelt's invention to pack the court "a bonehead idea." He added: "It was a terrible, terrible mistake to make." Those comments came on the Senate floor.
Again in 2005, Biden branded the idea a "power grab," dismissing it as an underhanded plot of someone "corrupted by power." But the "new" Biden has equivocated for months, before caving to media pressure and struggling to walk a political tightrope with his position.
"I am not a fan of court packing, but I don't want to get off on that whole issue," Biden pleaded on October 11. He has since flip-flopped to appease Democrats by adding, "Let's see what happens," a reference to the Barrett nomination. Certainly, there is support from many Democrats to enlarge the court.
Biden's running mate Sen. Kamala Harris, along with fellow Democrats Amy Klobuchar and Pete Buttigieg, all acknowledged they are "researching" the idea. Sen. Elizabeth Warren has also signaled she is open to adding justices as is Rep. Alexanderia Ocasio-Cortez.
Their positions reflect the opinions of Democrat voters. The movement assuredly will gain momentum if Judge Barrett is confirmed by the Senate. A Democratic Congress will react swiftly to reshape the court to their liking, especially if their presidential candidate wins in November.
But an ABC News/Washington Post poll in late September found that a majority of Americans (54%) oppose inflating the court. A minority of 32% support broadening the number of justices. The remainder had no opinion. A plurality of Democrats (45%) favor the concept, while 39% are opposed.
The court has already become politicized by the ordinary process of nominating candidates for judicial vacancies. If both parties engage in political gamesmanship by modifying the make-up of the court for their own gain, it will splinter the separation of powers enumerated in the Constitution.
When that happens, the Supreme Court will become a fiefdom packed with justices appointed to do the political bidding of the parties instead of rendering impartial decisions. For more than a century the Supreme Court has been comprised of nine justices. There is no reason now to discard that tradition.
No comments:
Post a Comment