Democrats should be cautious about enlarging the size of the U.S. Supreme Court, despite the blatantly inappropriate confirmation of Amy Coney Barrett, should they win the Senate this fall and Joe Biden wins the presidency.
It would be wiser to take a breath and watch. Wait and see how the court really acts with its new 6-3 conservative majority.
This also would give a commission that Biden has proposed — a commission ideally composed of experienced experts respected across the political spectrum — time to study the matter. Perhaps there are other remedies — less political in themselves — to the GOP’s severe politicization of the one branch of government that is supposed to be above politics.
As University of Chicago Law Professor Geoffrey Stone said to us on Monday, “As a general matter, Congress should not be tampering with the size of the court without a clear and nonpolitical justification. We want the court to have the integrity that it needs to be regarded as a legitimate judicial body.”
Unfortunately, that ideal already has been severely compromised. The Republican-controlled Senate’s recent actions, particularly its refusal to consider former President Barack Obama’s nomination of Merrick Garland, has stacked the court with justices whose ideological views represent only a small minority of Americans. The Garland atrocity followed years of aggressively political appointments by the GOP to the federal courts.
Before 1869, presidents and Congress rejiggered the number of Supreme Court justices several times. To avoid a new arms race, driven purely by politics, any future rejiggering must strike Americans across the political spectrum as fair and justified.
One proposed remedy Stone cites as a possibility to the Senate’s unpatriotic action in confirming Barrett’s nomination, assuming Biden and the Democrats prevail in this fall’s elections, would be to add two Democratic-appointed justices, enlarging the court from 9 to 11. This would result in a 6-5 Republican majority on the court, just as Garland’s confirmation would have left the court with a one-justice Republican majority of 5-4.
Another option, proposed by Gabe Roth, executive director of Fix the Court, would be to limit court terms to 18 years, giving each president two picks every four years. Instead of serving life terms on the Supreme Court.
Justices in the early days of the Republic often left the court on their own, having less influence on public policy then. It was only in the last century, Roth notes, that justices gained the power they wield today. Term limits might return the court closer to the founders’ original intent.
There was a time, not long ago, when the actions of a new justice seemed more difficult to predict. Republican-appointed Earl Warren and William Brennan turned out to be liberal voices on the court. Democrat-appointed Felix Frankfurter and Byron White ruled more conservatively than expected. In the best of cases, the appointment process is less hard-wired to political advantage, allowing for more justices who are not easily pegged.
Raw partisan politics, abetted by the end of the Senate filibuster for Supreme Court confirmations, has gotten us into a nightmare situation. Only a thoughtful and determined response — one widely supported by the public — will get us out of it.
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