On the question of packing the Supreme Court
Written by Jacob Arden on October 14th, 2020
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In 1869 the Congress of the United States passed the Judiciary Act. This established separate circuit “judgeships” to handle the increasing court caseload cropping up in the United States following the Reconstruction. This bill also established that the Supreme Court of the United States would consist of one Chief Justice, and eight associate justices. Following this, in 1937, then president Franklin D. Roosevelt introduced the Judicial Procedures Reform Bill.

This legislation would have allowed the President to appoint up to six additional justices to the Supreme Court of the United States. Roosevelt did this in an attempt to gain court rulings in favor of his “New Deal” legislation, among other things. Though congress does have the ability to change the number of justices, it was not a popular piece of legislation, even amongst members of his own party. In fact his own Vice President opposed it. The bill came to be known as “Roosevelt’s court-packing plan.” It was trapped in committee and it died a slow death. Ever since the term “Court-packing,” or to “Pack the court,” was defined as increasing the number of Supreme Court Justices in order to gain a favorable ruling over controversial legislation.

In recent weeks, it seems, an attempt is being made to redefine that term. Members of the Democrat party have made the claim that by appointing a new Justice to a vacant seat in the Supreme Court, the Republican party is in fact, “Packing the court.” Even former Vice President Joe Biden recently declared the appointment of a Supreme Court Justice during an election year as “Unconstitutional.” Despite the obvious political rhetoric, this is clearly not the case. As stated above, in 1869 the congress established the number of Supreme Court Justices at nine. Currently, there are eight. Thus the constitutional duty to nominate a new justice to fill that vacancy falls upon the President, who has done so in nominating Judge Amy Coney Barret. It now falls upon the Senate to either approve that nomination, or not.

Although Democrats are not happy about this current state of affairs, there is nothing they can do about it. The President has the constitutional authority to nominate Justices to the supreme court if there is a vacant seat. The recent death of Justice Ruth Bader Ginsberg created that vacancy. The Senate is currently under a Republican majority, who have every right to confirm that nomination, but there are other factors which lead to this.

In 2013, Democrats, lead by Majority Leader Harry Reid instituted a senate rule change dubbed “The nuclear option,” that eliminated the Filibuster for most federal appointees, including some in the judiciary, but excluding Supreme Court nominees. The rule change was ardently opposed by the Republican minority, calling it a power grab and vowing to re-pay the favor should the Republicans regain control of the senate.

At the time Democrats claimed that Republicans had devolved into a party hell bent on obstructing the Obama administration. President Obama was quoted after the rule change saying “today’s pattern of obstruction . . . just isn’t normal; it’s not what our founders envisioned.”. To which republican Senator Richard Shelby said “This is a mistake… a big one for the long run. Maybe not for the short run. I think it changes the Senate tremendously in a bad way,” “Democrats won’t be in power in perpetuity.”

As promised, In 2017 Republicans, now a majority in the senate, returned the favor. Expanding Senator Harry Reid’s rule change to eliminate the filibuster on Supreme Court nominees as well as requiring only a majority vote to confirm justices, rather than the previously required sixty votes. Democrats had painted themselves into a corner, because of rule changes made during a time when Democrats believed they could not loose. Rules such as the ones that Democrats changed back in 2013 were there to to ensure that a majority could not crush the minority viewpoint, to always provide a way for everyone, even the minority party, to have a voice. Harry Reid’s “nuclear option”, destroyed that. Democrats are finally looking outward and seeing the devastation it caused.

Calls from some in the Democrat party to “Pack the court” in response to short sighted decisions made by retired party members is as bad an idea as it was in 1937. Filling the court with political appointees will undermine confidence in the judicial system, as court decisions would reflect only the wishes of the ruling party. Should the balance of power change back into the hands of the opposing party, nothing will stop them from adding even more political appointees to the court to counter the previous court packing attempt.

Hubris, very short sighted decisions, and arrogance got the senate to this point. Re-establishing senate rules to a state prior to the devastation Harry Reid’s “nuclear option” caused is preferable to turning the Supreme Court into a Kangaroo court. Packing it with people picked to support a political viewpoint, rather than a constitutional one would be far more damaging to the Republic than any senate rule change ever could be.

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Written by Jacob Arden on October 14th, 2020

Jacob Arden is the owner of Objects in Motion, and a father of three.