REX TILLERSON DID CORRECTLY CALL THE PRESIDENT AS HE SAW HIM

 IF BIDEN WINS, WILL HE CONSIDER “PACKING” THE SUPREME COURT?

 

                           …FDR tried, but failed to add justices to the high court

 

This is an item that has serious, “Pros” & “Cons”

 

We are starting to hear more often the term, “Packing the Supreme Court.”  Do you know what it means, and why the Congress or a president or both would want to do such a thing?

First, let’s look at why they would want to do that, and then a look at the history of the Supreme Court and why and when “packing” or adding justices was done.

The reason is pretty obvious.  Doing so changes the political makeup of the court and any influence of its decisions. Congress and the president might decide that the court’s majority is too far out of line with their understanding of the Constitution and the law, or even of public opinion.  The adding of seats on the court with justices who think more like the president or the congress, is in the hopes of rebalancing the court’s scale of justice.

Here's a brief history of when packing the court did occur.

In the Civil War era, the court expanded and shrank it like an accordion. In 1863, the Republican Congress expanded the court to 10 justices, just to give the new President, Abraham Lincoln, an extra court appointment.  A few years later, Congress reduced the court to seven justices to prevent Lincoln’s replacement, President Andrew Johnson, from making any appointments.  Then they expanded it to nine in 1869 to give President Ulysses S. Grant some new vacancies to fill.  

It has stayed at nine ever since.

But another US president did try to change it.  President Franklin Delano Roosevelt (FDR) tried in the 1930s to get Congress to expand the court.  He was totally frustrated by how the court was knocking down pieces of his very popular New Deal legislation.  He put out a judicial overhaul plan that would allow him to appoint a new judge in all federal courts for every judge older than 70. 

“That’s the way it was dressed up, but people saw pretty clearly what it allowed him to do,” said Russell Wheeler.  Wheeler is a Supreme Court expert with the Brookings Institution, “which was his aim to appoint justices for the five or six who were over the age of 70 on the Supreme Court.”

Roosevelt’s idea hit a brick wall in Congress. But in a roundabout way, he got what he wanted: The court saw its majority imperiled, and two justices began switching their votes to support FDR’s New Deal legislation. This is where the phrase: ‘a switch in time, saves nine,” came from.  Wheeler said:. “They switched their approach to FDR’s New Deal legislation, and that saved the idea of staying with nine justices.”

Now the Democrats are starting to talk about packing the court.

They are frustrated about how the newest two justices, Neil Gorsuch and Brett Kavanaugh, have gotten on the court: under extremely politically divisive circumstances.  They were nominated by a president who lost the popular vote, and was approved by a bare majority of a Senate that, because of where people live, no longer represents a majority of the US population.

“Any one of these things might not have been sufficient by themselves,” said University of Michigan professor of law Leah Litman. “But the combination of all these things … strikes people as no way to run a country.”

“Nothing is off the table,” Senate Minority Leader Charles (Chuck) Schumer (N.Y.) told fellow Democrats in a widely reported private conference call this last weekend.  He didn’t specifically mention court packing, but this was interpreted as a nod to considering the idea, since he didn’t rule it out.

Expanding the court gained traction during this year’s Democratic presidential primary.  As many as 11 candidates were at least open to it, according to a Washington Post tally. “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Elizabeth Warren (D-Mass.) said. “It’s a conversation that’s worth having.”

“We need to reform the Supreme Court in a way that will strengthen its independence and restore the American people’s trust in it, as a check to the presidency and the Congress,” former South Bend, Ind., Mayor, and Presidential candidate, Pete Buttigieg said. 

Here is what Joe Biden has said about court packing

The Democratic presidential nominee spoke about Supreme Court Justice, Ruth Bader Ginsburg, at the National Constitution Center in Philadelphia on just this Sept. 20.

He has not been a fan of adding court justices.  He sees it as a maneuver that could come back to haunt Democrats when they’re out of power. What’s to stop a Republican president and Republican Congress from expanding it even more, just to get what they want?  That was a feature of the Reconstruction era. “We’ll live to rue that day,” he said last year during the primary.

Plus, Biden has served in the Senate for more than 30 years and has a reputation for respecting institutions and the way things are done. He’s an unlikely candidate to be the first president in some 150 years to expand the court. And his campaign seems aware of a risk that even talking about this could turn away moderate voters.  Those who may not be as conservative as the way this Supreme Court is heading, but who also don’t want to mess with the way things are done today. Ginsburg was opposed to it for that reason.

“If anything would make the court look partisan,” she told NPR in 2019, “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.’ ”

Some Washington Post reporters have reported that some people in Biden’s campaign are annoyed by this movement rising on the left.  “People in your own party shouldn’t cause you problems 44 days out,” said one Biden adviser, criticizing Democrats in Congress for elevating the idea.

So, how this could this “packing” still actually happen?

Let’s say Democrats are in a position to seriously consider this: They win the presidency, keep control of the House of Representatives and win the majority in the Senate, thus controlling the White House and all of the Congress.

Considering there is still a pandemic and calls for action on racial injustice, moving to expand the Supreme Court doesn’t seem like the first to-do item on their list.  But what if Democrats start passing Biden’s agenda, and inevitable challenges by Republicans make Biden’s agenda items being sent to the conservative Supreme Court, which stops some of the legislation?

There could be a world in which Biden, frustrated by the court just as Roosevelt was, starts thinking differently about the court’s makeup.  Biden would need majority votes in the House of Representatives and in the Senate to approve expanding the court, just like any other piece of legislation (though the Senate Republicans would obviously try to filibuster it).  But if the law passed, Biden and the Democratic Senate could add justices with a simple majority vote.

There’s also a world in which even just the discussing changing the court actually changes how partisan the court is, just like what happened under Roosevelt.  Packing the court has ramifications for the justices as much as the politicians who do it.

“It will be a severe blow to the legitimacy of the Supreme Court if people look at it and say: ‘This is a compromised court, with these judges were appointed by a partisan president,’ ” Wheeler said.

But as with FDR, if the Republicans ignore their sworn duties like they have under President Trump, packing the high court may be one of the choices for the  Democrats.

If Biden wins, this will be an interesting issues to watch out for.

Copyright G. Ater 2020