IS “PACKING THE COURT” A GOOD IDEA?

 

…FDR tried to pack the Supreme Court. But just by trying & failing, it got him what he wanted

 

If Biden wins, perhaps the Democrats should announce that they want to “Pack the Court”.

 

So, what is “Packing the Supreme Court” court all about?

“Packing the court” just means adding more, life-time Supreme Court justices.  It is not easy to do this.  Here is what it would take to pack the high court, if the Democrats take the White House and the Senate and they hold on to the House of Representatives, they would have a good chance to do it.

Democrats need all those things above to go just right, before they could be in a position to even consider expanding the high court.

Yes, they would need to take the White House and Senate in November, as well as hold on to the House. Even then, they’d likely need to eliminate the filibuster to get court-packing legislation through the Senate.  Despite these long odds, in the increasing number of voters from both parties, they say the court is very important to them.

So, what is the history of: “Packing the high court?”  The number of changes to the Supreme Court’s size, enlarged or shrunk, has changed seven times.

In the 1930s, President Franklin D. Roosevelt (FDR) proposed adding seats to the Supreme Court to circumvent a judiciary that was blocking his New Deal policies. He came up short in increasing, but the threat was seen as having compelled some of the then sitting justices to stop standing in the way of his programs.  The question is, would any of the current conservative justices be enticed to do the same in order to prevent the Democrats from trying to add more justices if they take over the White House and the two houses of the US Congress?  Many government observers think that the nation and the high court are so divided that the chance of that occurring is slight.  But if the Democrats have the “Blue Wave” as some polls have suggested, and they take the Congress and the White House, anything could happen.

FYI: Seven of the latest Democratic presidential candidates have said they were open to the idea of increasing the number of justices on the court.

Why there’s a debate:

Advocates for expanding the Supreme Court say it may be the only way to rebalance an institution that has developed a strong conservative majority through what many consider illegitimate means.  A series of recent decisions, such as the rollback of the Voting Rights Act and the high court’s failure to act on partisan gerrymandering, this shows that the court is already driven by partisanship rather than proper judicial action.  Some argue, “We are on the verge of a crisis of confidence in the Supreme Court,” Democratic VP candidate and California Senator, Kamala Harris has stated..

Many liberals fear that the current conservative Supreme Court will block any progressive agenda if voters show a strong preference for Democrats in 2020. Eighty progressive agenda items have failed with a 5 to 4 vote in favor of the conservative Supreme Court justices.  Therefore, the court has thus far decided to effectively allow a handful of the judges to subvert the will of the people.  (When there have been a group of moderate judges, the decisions are usually more balanced between the conservatives and the liberals.)

Increasing the number of Supreme Court justices has, however, received strong criticism from both the left and the right. Senate Majority Leader Mitch McConnell called court-packing plans a: “direct, immediate threat to the independence of the judiciary and the rights of all Americans.” Many Republicans see the proposal as a desperate move by Democrats who are unable to gain power in a system that’s been seen as equitable for 150 years.

Liberal critics worry that if Democrats press ahead and increase the number of justices, Republicans will promptly do the same, if and when they return to power. This could lead to a bloated, broken Supreme Court that expands whenever control of Washington changes hands.

However, the Appellant Court Districts are now up to over 20 judges and when they are assigned to deal with an appeal, three judges are assigned randomly and their position as conservative or liberal is not revealed.  Therefore, the decisions are usually very evenly decided.

So, what’s next:

Democrats need a lot of things to go right before they can be in a position to even consider expanding the high court.

PRO Perspectives of Adding of Justices:

Republican maneuvering over the time that Mitch McConnell has been in charge of the US Senate.  This has undermined the legitimacy of the high court.

“There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.” — Jamelle Bouie, New York Times.

Without expanding the court, all of the popular progressive agendas would be blocked

“Even if Democrats were to take the White House and the Senate in 2020, earning a popular mandate to revolutionize health care in America and spare the planet from human-induced heat death, a conservative Court would put every legislative effort to solve these seemingly-intractable problems in an immediate, permanent state of legal jeopardy.” — Jay Willis, GQ Magazine

History has shown that the court remains independent after the number of justices changes.

“A moment’s reflection on the history of the Court shows that it remained fiercely independent after each of the seven instances in which Congress changed the court’s size. It is difficult to believe that a future expansion of the Court would break this mold. Far from leading to democratic death spirals, changes to the size of the Court have gone hand in hand with the most vibrant periods of our democracy.” — Tim Burns, New Republic

Congress is obligated to act when the court is standing in the way of democracy

“The framers left it up to Congress as a check on the court to determine the makeup of the court. ... And so, if you have a court that is out to subvert the very democratic basis of the country, as is the case today, it is not only allowable for Congress to step in — it is Congress’ job to step in and check the courts.” — Pack the Courts founder Aaron Belkin, Slate

Growing the court might lead to more moderate decisions from current judges

“And if things do turn out well for Democrats and they enjoy a governing trifecta in 2021, they could emulate FDR in utilizing court-packing or similar reforms as a way to get the attention of conservatives and perhaps secure their agreement to de-escalate their politicization of the courts.” — Ed Kilgore, New York Magazine

CON Perspectives of Adding of Justices:

Democrats are discussing court packing only because they’ve failed in the current system

“Democrats are losing the Supreme Court because their ideas are unpopular, not because of the number of justices. Should they prevail with the public, the Supreme Court won’t be far behind.” — Bruce Fein, American Conservative Magazine

Republicans would just add their own justices when they got back in power

“Court-packing isn’t really a permanent solution, since the two parties enter in a never-ending cycle of one-upmanship as each side seeks to expand the Supreme Court when its side is in power — a recipe for an unwieldy court and increased partisanship on the court.” — Jennifer Rubin, Washington Post

Some say adding justices to the court could be a death blow to an independent judiciary

“In one swoop, it would irreparably destroy the American tradition of judicial independence of the political branches. In short order, this would end the American experiment of the rule of law and a government of separated and limited powers.” — Dan McLaughlin, National Review

Expanding the court could possibly make partisanship on the court worse

“There is already too much partisanship surrounding the judiciary, especially the nomination and confirmation of justices in the modern era. We should not contribute to that unfortunate reality by legislative fiat.” — Peter G. Verniero, NJ.com

It could be an unnecessary escalation in response to the current Republican illegal underhandedness

CONCLUSION?:

If the Democrats do receive the ability to add justices to the court, by threatening expansion could possibly get the Republicans to stop their illegal attacks.  But expansion could also get the repeal of the Citizens United case which could take the dark money out of politics.  It could save and improve Obamacare and save the ability for American women’s to choose about their bodies, and the country could once again go after dealing with pollution and Climate Change.   None of that is possible under current conditions.

But could it cause a worse response if and when the GOP again gets control? 

That is the question that would make the adding of justices a good or bad idea.

Copyright G. Ater 2020