The Case for Court Packing

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Photo by Anthony Garand on Unsplash

The Supreme Court was designed to be the forgotten branch of government. The Founders would have been happy if the average American didn’t know the individual Justices or their political leanings. For the majority of our nation’s history the Founder’s system was successful. However, that has all changed in recent history as fights over Supreme Court Justices have become among the most partisan battles in politics today. To honor the Founders, America must rebuild a barrier around the Supreme Court which separates their decisions from the influence and political games of our two-party system. The best way to do this is by enacting a new amendment to the Constitution. An amendment that sets the number of Supreme Court Justices at twelve, a number suggested during the original Constitution Convention, and establishes rules for how Supreme Court vacancies are filled.

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The Seventeenth Amendment became part of the Constitution on April 8, 1913

America’s Constitution is short, concise, and has left much up to interpretation throughout our nation’s history. The least specificity in the Constitution was given to the Supreme Court. The Constitution doesn’t set the number of justices and what we see as the principle job of the Supreme Court today, ruling on the constitutionality of laws, isn’t even part of the Constitution. The Supreme Court gave itself the ability to rule on the constitutionality of cases in the Court’s first famous case, Marbury v. Madison. The Founders didn’t want Justices to be swayed by partisan politics and that is why the Constitution gave Justices life appointments and only allowed the Senate to vote on the confirmation of Justices. Because Senators were not directly elected there was an argument that they did not have an incentive to play politics with the appointment of Justices and the Constitution excludes the House from the approval process because they were directly elected and could play politics with appointments. Senators have only been directly elected by citizens since the passage of the Seventeenth Amendment in 1913.

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Ron Chernow (2004). Alexander Hamilton

The determination of the number of Justices was left to Congress. The first Congress set the number of Justices at six with the Judiciary Act of 1789, but over the next 80 years Congress changed the number of Justices six times, ranging between five to ten justices. In 1869, Congress set the number of Justices at nine and that is where it has stayed for over 150 years.

The Founders believed the Supreme Court should be devoid of political fighting. And for most of our nation’s history, it was the forgotten branch of the U.S. government, rarely making headlines and never the focus of America’s attention or elections. That changed in the twentieth century with the Supreme Court striking down several of President Roosevelt’s New Deal laws as unconstitutional. Roosevelt was in office for a record four terms and remade the composition of the Court by appointing Justices with a more generous view of government powers. The Supreme Court in the second half of the twentieth century became notable for expanding judicial power. The Court made several rulings on civil rights, women’s rights, environmental protection, and campaign financing that brought the Court into the spotlight and were critiqued by conservatives for ‘legislating from the bench’. The political focus on the Court only increased from the 1980s to today with parties creating tests for potential justices to gauge their loyalty to a party belief system.

What little separation the Supreme Court had from the political process vanished. First, in 2016 the Republican party refused to hold hearings when President Obama nominated Merrick Garland to the Supreme Court in March of 2016, citing the nomination being too close to an election. Supreme Court nominees still required 60 votes back in 2016 and Garland was seen as a moderate candidate that could generate bipartisan support. Next, when President Trump assumed office in 2017 and nominated Robert Gorsuch to the Court, Senate Republicans eliminated the filibuster for Supreme Court nominees to allow for a simple majority vote, thus allowing more partisan candidates to be placed onto the Court. Most recently, Republicans in yet another act of partisanship moved to appoint Amy Barrett to the Supreme Court mere days before the 2020 election, completely reversing their stance from 2016 of not appointing justices to the Supreme Court in an election year, further heightening the politicization of the Court.

A compromise needs to be reached to deescalate the increasing partisanship of the court. I propose a new three part constitutional Amendment to restore the Founder’s original intention for the Supreme Court that is free from partisan fighting.

  • Increase the number of Supreme Court Justices to twelve. This number was proposed during the Constitutional Convention by Alexander Hamilton. This would increase the number of voices on the court and reduce the number of rulings decided by one Justice by making an even number on the Court. If there was a 6–6 tie, the case would be remanded and left to the lower courts to decide. This would slow down the judicial process but ensure a fair outcome.
  • Require Justices to have sixty votes (two-thirds) to be confirmed in the Senate, very rarely does one political party occupy a filibuster proof hold over the Supreme Court and even then it does not usually last for very long. Again requiring sixty votes will require the Senate to compromise and ensure Justices are not overly partisan.
  • A term-limit for Justices would be created to ensure that Justices do not time their retirement so that a President that shares their beliefs appoints their successor. A Justice would have a 24 year-term, with a new Justice appointed every two years. Justices that retire or die before the completion of their term would have their seat filled by a Justice that would only serve the remainder of their term.

This should be a bipartisan proposal, designed to take away any advantage from either party and restore the Supreme Court to the Founder’s original intention of keeping the Court free from politics. President Trump has said that one of his greatest achievements is appointing conservative Supreme Court Justices and the Republican Senate has pushed them through in televised and dramatically partisan battles. This should not be how the Supreme Court works. Justices should be chosen on their scholarly credentials, not their commitment to partisan beliefs. The Senate should provide a check on the President, ensuring that she or he appoints Justices that will fairly apply the law.

Should Biden win the Presidency there will be many suggestions for how to reform the Supreme Court. Simply adding Justices to the Court without also enacting bipartisan reforms will further politicize the Court. The proposed constitutional Amendment will ensure de-escalation and fairness moving forward. However, constitutional Amendments are difficult to pass and require agreement between the parties and across the states. Biden should work with Republicans to enact this fair approach that will restore America’s confidence in the Supreme Court.

Here are more articles on ensuring a fair system of government:

Reality is merely an illusion, albeit a very persistent one. — Albert Einstein

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