Good Old Fashioned Supreme Court Packing

Good Old Fashioned Supreme Court Packing

Ed Lasky
Rick Moran
It’s been done before, says Jean Edward Smith, writing in an Op-Ed in the New York Times:

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership.

The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

Then there was FDR’s abortive plan to pack SCOTUS in order to ram some of his more radical New Deal programs through that the Supremes had struck down as being unconstitutional.

The current 9 justice court was voted by Congress during Grant’s term. But why would you fool with the number of justices?

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.

So when the court strays from some undefined path – decided by who? – Democrats have a right to simply increase the size of the court to get their way?

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

“Popular values?” What happened to all that high falutin language about “the law?”

Ed Lasky:

Congress not happy with US Supreme Court alignment? Well…just manipulate the size of the Court once Democratic majorities are established. How is this justice? What would prevent the Democratic majority from enlarging the SCOTUS to …let’ say…25 members then nominate and select 16 or so very young justices thereby ensuring a dominant Democratic-leaning Supreme Court for many years to come. Is that what this op-ed advocates? Blatant manipulation to satisfy partisan passions? The Supreme Court is supposed to be a check on such passions of the people.

Not if the court is going against “popular values” evidently.


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