EXPAND THE SUPREME COURT?
Should we restructure the Supreme Court?
Is there any appetite for changing the Supreme Court?
It typically takes a crisis to generate support for major change to the federal courts. Until now there has been little evidence today of public appetite for such change, but the rush to fill RBG’s seat late in the election year appears to have whetted the appetite. The size of the Supreme Court came up, albeit obliquely, in the 2019 Democratic debates, in particular during the 12-candidate October debate, and the commentariat occasionally raises the matter. Several Democratic senators in a Supreme Court brief pointed to a May 2019 Quinnipiac University national survey that they claimed showed “a majority now believes the ‘Supreme Court should be restructured in order to reduce the influence of politics.’” But the survey question gave no definition of “restructured” and supporters registered just a bare majority. A Marquette University Law School national survey in October 2019 also included a long bank of questions about the court. Most relevant, it found that nearly three-fifths opposed “increase[ing] the number of justices,” and that even among committed Democrats (as opposed to “Lean Democratic”), support was evenly split. By contrast, nearly three-quarters favored term limits regardless of party.
Judicial Procedures Reform Bill of 1937
The Judicial Procedures Reform Bill of 1937,[1] frequently called the "court-packing plan",[2] was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional.[3] The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.
In the Judiciary Act of 1869, Congress had established that the Supreme Court would consist of the chief justice and eight associate justices. During Roosevelt's first term, the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule that his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the Supreme Court's size, Roosevelt pointed out that it was within the power of Congress to change it. Members of both parties viewed the legislation as an attempt to stack the court, and many Democrats, including Vice President John Nance Garner, opposed it.[4][5]
Beyond 'Court Packing: Repairing The Supreme Court
“What makes this so especially bizarre,” writes Boston College history professor Heather Cox Richardson in her newsletter, Letters from an American, “is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology.”
Once Barrett has been confirmed, and there is little doubt about that, Trump will have named three of the nine justices under the most undemocratic, unrepresentative circumstances imaginable.
As we all know, Trump lost the popular vote to Democratic nominee Hillary Clinton by 48% to 46%, a margin of more than 2.8 million. What’s less well known is that Republican senators represent fewer people than Democratic senators even though they hold the majority.
During the 2017-’08 session, for instance, when Justices Neil Gorsuch and Brett Kavanaugh were confirmed by slim margins, (54-45 and 50-48, respectively), the Senate’s 50 to 52 Republicans (the number changed several times) represented about 44% of the country’s population. Democrats and independents who caucus with them represented 56%. The 53 Republicans who will decide Barrett’s fate represent less than 47% of the country.
In The News — Take Back the Court
The number of justices on the Court, set at nine since the mid-19th century, has changed over the years. The court was founded in 1789 with six justices, but was reduced to five in 1801 and increased to six in 1802, followed by small changes over the subsequent 67 years. [14] [15] As explained in Encyclopedia Britannica, “In 1807 a seventh justice was added, followed by an eighth and a ninth in 1837 and a tenth in 1863. The size of the court has sometimes been subject to political manipulation; for example, in 1866 Congress provided for the gradual reduction (through attrition) of the court to seven justices to ensure that President Andrew Johnson, whom the House of Representatives later impeached and the Senate only narrowly acquitted, could not appoint a new justice. The number of justices reached eight before Congress, after Johnson had left office, adopted new legislation (1869) setting the number at nine, where it has remained ever since.”
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