Judgment Day: Should the Number of Judges on the Supreme Court Be Increased?


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The Supreme Court: Should the Number of Justices Sitting on America’s Highest Court Be Increased?

PRO Expand the Supreme Court:

Add seats to the Supreme Court to defend and expand democracy.

America’s judicial system is increasingly used as a stranglehold preventing the flow of democracy in order to protect the privileges of a minority and preempt the rights of the majority. “President Trump has now confirmed 200 federal judges,” a record number largely accomplished through the Machiavellian maneuvering of Senate Majority Leader Mitch McConnell, R-Ky. Moscow Mitch “‘confirmed the fewest judges since President Truman during Obama’s last two years in office,’ said Christopher Kang, who vetted judicial nominees in the Obama White House. ‘So the reason President Trump had 200 judgeships to fill in the first place is because McConnell obstructed’” President Obama’s nominees, stonewalling them until a Republican took the West Wing. 

“Many of the Trump nominees are in their 30s and 40s, not anywhere near retirement age,” and as Vanita Gupta of the Leadership Conference on Civil and Human Rights points out, “They are largely white and male. It is an astonishing lack of representation,” and most are vetted by the right-tilting Federalist Society. Kang, of the Demand Justice group, warns: “Even if Donald Trump is gone from office in January, these judges are going to be ruling for decades to come.” 

Nowhere is this conservative grip over the judiciary more blatant than in the Supreme Court. In 2016, after the February death of conservative Justice Antonin Scalia, citing the fact that it was a presidential election year, McConnell roadblocked Obama’s SCOTUS nominee, Merrick Garland, dead in its tracks – although Election Day was eight months away. The seat was vacant for 14 months, until after the inauguration of Trump, who “nominated federal appeals court Judge Neil Gorsuch to the Scalia seat.” 

On the other hand, in the wake of Justice Ruth Bader Ginsburg’s death, in a brazen power grab McConnell hypocritically fast-tracked conservative Amy Coney Barrett for Senate approval, although Senate Minority Leader Chuck Schumer said, “at no time in the Senate’s history have senators confirmed a Supreme Court nominee so close to a presidential election, which is just 43 days away.” 

Due to factors such as the justices’ lifetime appointments and chance, in one term Trump had the opportunity to nominate three judges to the highest court in the land, all confirmed by McConnell’s GOP-dominated Senate. (In contrast, Jimmy Carter didn’t appoint a single Supreme Court justice during his presidency.

In effect, what this means is that in November’s general election, even if Democrats win both the executive and legislative branches of government, the third branch of America’s system of checks and balances – the judiciary – can hold sway over what the French Enlightenment philosopher Jean-Jacques Rousseau called “the general will” in 1762’s The Social Contract.

A Supreme Court packed by Trump and McConnell rightwing idealogues such as 55-year-old Bret Kavanaugh and 48-year-old Barrett could wield veto power, stymieing popular progressive change for decades in an era of climate crisis, pandemic, racism, police brutality, wealth inequality, etc.

Previously, according to Take Back the Court, “The current partisan Court broke democracy by shattering the Voting Rights Act, allowing unlimited unaccountable money in politics, and permitting hyper-partisan gerrymandering,” enabling Trump to seize the presidency and implement his reactionary policies. 

Now this is more urgent than ever: Barrett has been rushed through the Senate confirmation process because Trump wants to ensure there’s no tie vote when the Supreme Court considers Obamacare’s constitutionality on November 10 and if a contested presidential race comes before the high court. During Senate Judiciary Committee hearings, “Democratic senators pressed Barrett on whether she would recuse herself from a possible case about the outcome of the 2020 election. The Connecticut senator Richard Blumenthal said he was ‘disappointed’ in Barrett’s refusal to commit to a position. He added: ‘It would be a dagger at the heart of the court and our democracy if this election is decided by the court rather than the American voters.’”    

There is, however, a way to overrule a 6 to 3 court that would thwart the people’s popular will for decades.

“Unless we right these wrongs by expanding the Court, it will be all but impossible for Congress to restore democracy… ” Assuming the Democrats retake the Senate and White House, they can pursue their agenda unhampered by a Republican-rigged court simply by adding justices to the bench so that liberal-leaning magistrates outnumber and outvote the conservative ones. Nowhere does the U.S. Constitution specify the number of SCOTUS judges, thus a constitutional amendment isn’t required. So how could the high court be expanded? “All it takes is for Congress to pass a bill and the President to sign it into law.” 

There is nothing illegal or extremist about changing the composition of the Supreme Court since it first convened in 1790. The number of SCOTUS justices first changed during Jefferson’s era. “The size of the Court has changed six times in U.S. history,” just as America’s size has over the centuries. Supporters including ex-Attorney General Eric Holder, presidential candidate Pete Buttigieg, “Senators Elizabeth Warren (D-Mass.) and Kamala Harris have said expanding, or ‘packing,’ the court should be an option on the table as part of a larger conversation among Democrats about the direction of the U.S. judicial system.”

“[U]nder Abraham Lincoln, the number of justices grew to 10 before Congress decided to set the number at nine in 1869.”  

In his 1861 inaugural address, the Great Emancipator proclaimed this about a body notorious for its pro-slavery rulings: “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” 

CON Expand the Supreme Court:

Court-packing is a bad historical precedent that should be benched.

The Democratic candidates for president and vice president, Joe Biden and Kamala Harris, have repeatedly ducked questions about adding more seats to the Supreme Court of the United States (SCOTUS). “Biden stumbled hard in late September when asked about court-packing in Wisconsin. He wasn’t going to answer, he said, because ‘it will shift the focus’ [from issues such as Trump’s pandemic response] and ‘then the whole [forthcoming presidential] debate is going to be about what Biden said or didn’t say, Biden said he would or wouldn’t.’ This non-answer was like pouring honey over a dead javelina in the Sonoran Desert and daring the fire ants not to come for it. Even though both moderator Chris Wallace and President Donald Trump grilled him on court-packing at the Sept. 29 debate, he dodged their legitimate questions and continued to dodge…” 

“After dithering for a month over the charged question of whether he supported the expansion of the Supreme Court – a.k.a. ‘court-packing’ – first he wouldn’t answer the question, then he said he would answer ‘when the election is over,’ then he said he would answer before the election, Joe Biden finally proposed on Thursday the formation of a bipartisan commission after the election to ‘study’ the issue…

“It is a truth universally acknowledged that the best way to kick the political can down the road is to call for a bipartisan commission to study it. Shifting the matter to a bipartisan commission makes it look as though progress is being made and it releases pressure on whoever might be the president to take a stand. By assigning the topic to a bipartisan gaggle of scholars or diplomats or politicians, the commission creates the illusion that the very political issue under question has been depoliticized. The bipartisan commission serves as both the broom and the rug in the act of sweeping something out of sight.”   

There are obvious reasons for this sidestepping: Like fracking, court-packing is extremely unpopular, controversial and would set a bad historical precedent for something that hasn’t happened for 131 years

Back in March 2019 a constitutional amendment to oppose this was proposed. “Roughly a dozen Republican senators introduced [a] resolution on Monday that would keep the Supreme Court at nine justices. ‘The Democrats’ court-packing proposal represents the latest shortsighted effort to undermine America’s confidence in our institutions and our democracy,’ Sen. Marco Rubio (R-Fla.), who spearheaded the resolution, said in a statement.” 

But this is by no means the first time senators have opposed Oval Office efforts to monkey around with the number of seats on the highest court in the land. During the Depression, FDR was exasperated by Supreme Court rulings against New Deal programs. The Democratic President wanted to: “Expand the bench by six justices – one for each justice over age 70… Roosevelt wanted 15 justices, claiming the measure was needed to clear backlogged dockets and for ‘a constant infusion of new blood in the courts.’” 

“After winning the 1936 presidential election in a landslide, Franklin D. Roosevelt proposed a bill to expand the membership of the Supreme Court. The law would have added one justice to the Court for each justice over the age of 70, with a maximum of six additional justices. Roosevelt’s motive was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation. As a result, the plan was widely and vehemently criticized. The law was never enacted by Congress, and Roosevelt lost a great deal of political support for having proposed it.” 

“The court-packing plan ‘divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism,’ historian Michael Parrish wrote in the Washington Law Review in 1984. ‘When the dust settled, FDR had suffered a humiliating political defeat.’”

In 2016 the president and Senate majority belonged to different parties, but now both are Republican. Amy Coney Barrett’s Senate approval process took place “less than 40 days until the Nov. 3 election.” But other nominees have sailed through more quickly: “two times since 1975 the chamber [has] been able to confirm a Supreme Court pick in less time. The late John Paul Stevens’s confirmation in 1975 took just 19 days, while former Justice Sandra Day O’Connor saw 33 days elapse from when she was nominated until a Senate vote in 1981.” 

Those decrying the hardball tactics used by contemporary Republicans vis-à-vis Obama’s stalled nomination of Merrick Garland, the warp speed confirmation process of Barrett, etc., must realize politics isn’t beanbag – whereas winning is everything. GOP strategy worked: “Republicans starting in 2016 blocked Democrats from establishing a 5-4 majority in an election year, then reversed themselves and elevated their own nominee to win a 6-3 majority that could last for decades.” 

If the number nine was good enough to be the name of a Broadway musical and in the Beatles song “Revolution 9” on “The White Album,” it’s good enough for SCOTUS. After all, who could disagree with the Fab Four?

ed rampell bio photo | Rock Cellar Magazine

Ed Rampell is an L.A.-based film historian/critic, journalist and author who wrote “Progressive Hollywood, A People’s Film History of the United States” and co-authored “The Hawaii Movie and Television Book.” Rampell is an authority on the history of the Hollywood Blacklist, and a frequent arts contributor to Rock Cellar. He has also written for The Progressive, Mother Jones, Hollywood Progressive, The Nation, L.A. Progressive, The Guardian, Los Angeles Times, Progressive Populist and The Guardian – covering political and arts-related stories. Ed is one of Los Angeles’ most prolific film, theatre, and opera critics and was named after legendary CBS journalist Edward R. Murrow. Ed’s new dramatic screenplay is based on true events that spotlight social injustice, racism and solidarity.


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