I admit that I made a slight mistake in yesterday’s post about Snarlin’ Arlen and his attack on judicial independence- I asserted, without clarifiying, that there was nothing “a Senator can do to a Supreme Court Justice save for pushing for impeachment.”

Some very intelligent people have been arguing that Congress can reign in these rogue justices or, at the very least, minimize their importance. The now-infamous New York Times editorial entitled “Stacking the Court” suggests that the Democrats should increase the number of justices on the Court in an effort to drown out the conservative block.

First of all, this plan would only be pertinent if the Democrats win the Presidency in 2008. That’s the biggest component of this whole plan, but since it isn’t terribly unlikely, I’ll assume for the rest of this article that the Democrats get their big wish.

If the Democrats win their big election and retain at least 45-50 person Senate contingency, the question becomes, ‘is it a good idea for the Democrats to try and pack the court?’ I don’t think so. Mostly because the measure would be wildly unpopular and would also have a very small chance of being passed.

Any measure to expand the Court for even remotely political reasons would push Congress’s approval rating to levels that we haven’t seen in years. The reason that Congress has been able to get away with expanding (and in some cases contracting) the court is that they have always tried to do it for practical purposes or at rather extreme times in our nation’s history with huge majorities in Congress.

The first alternation to the court’s numbers came in 1800 when a lame-duck congress decreased the number of justices to five just prior to the first peaceful party-swap in our (and some say all of) history. The Federalists in Congress didn’t want to give the Democratic-Republicans a chance to appoint many Justices.

The next change in the court’s composition came in 1807 when the heavily Democratic-Republican Congress added one seat for the Democratic-Republican President Thomas Jefferson to fill to counter the loss of that seat a few months earlier. When I say heavily Democratic-Republican, I don’t mean a 60% majority like we would now consider a major victory- 28 out of 34 members of the Senate (82.3%) and 116 out of 142 members of the House (81.6%) were of the same party as the President in 1807. Its not hard to imagine why Congress wanted to change the court’s numbers back to the way they originally were.

The next expansion of the Supreme Court was a more curious affair. Our favorite New York Times article hypothesizes that Supreme Court expansions are political affairs and makes no exception for the expansion of 1837. I discuss the issue at great length here, but I’ll paraphrase the story:

In March of 1937, the Democratic President Andrew Jackson was wrapping up his wildly divisive, eight-year Presidency. His hand-picked successor, Martin Van Buren, had been elected 4 months earlier and was gearing up to begin his own term in office. On March 3, 1837 Congress passed the ‘Act of March 3, 1837′ that (1)added two circuit courts in the Southwest (2)abolished certain circuit court responsibilities that overlapped with district courts and (3)added two Supreme Court Justices. Since the days of President Madison, Congress had refused to create new circuit courts because they were reluctant to give the President the privilege of appointing more Justices. Because of the country’s population growth and geographical expansion, Circuit Courts were forced to assume certain district court responsibilities that they would ordinarily not perform. This legislation ended that practice and created two new circuits. Because of the way the courts were structured at the time, each circuit needed at least one justice so Congress added the two new justices.

Congress added two justices to the court not simply because they wanted to give Andrew Jackson the power to appoint two justices, but because the growing nation needed circuit courts and it was a political climate just happened to be conducive to that change. In 1837, the court was comprised of seven justices and Jackson had nominated five of those himself. Thompson, one of the two justices who wasn’t appointed by Jackson, was certainly sympathetic to his cause meaning Jackson that had six of seven Supreme Court Justices in his pocket. At the time, The Democrats held a majority in the House (143/242 or 59%) and plurality in the Senate (26/52 or 50% The two Nullification Party Senators, William C. Preston and John C. Calhoun, would likely have sided against allowing Jackson to appoint more members.) The Democrats maintained the Presidency and a rather strong majority in both bodies of Congress (67% in the Senate and 53% in the House against a split coalition), so they certainly weren’t trying to add Justices in before they lost power in 1837.

The expansion of the court in 1863 and the subsequent contraction in 1867 should come as no surprise to anyone. In 1863, the radical Republicans in Congress had a strong majority and wanted to ensure that the Supreme Court would let them have their way during Reconstruction after the war. In 1867, Andrew Johnson, a democrat, became President and the Republicans in Congress dropped the number of Justices to seven because they didn’t want him to have the opportunity to appoint any new Justices that would interfere with Reconstruction in the south.

After returning the court to nine members during the Grant administration in 1868, the court’s numbers sat still for almost seventy-years. Franklin Roosevelt, just a liberal President beginning his second term at the time, tried to pack the court with a relatively complicated scheme that would appoint new Justices whenever a sitting Justice reached the age of 70. Jean Smith suggests that “Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.”

I’m not sure what would be different this time around if the Democrats try to pack the court. The failure of Roosevelt’s plan had nothing to do with its complexity but instead had everything to do with the fact that the American people have grown increasingly fond of the Supreme Court. Roosevelt had used up a lot of his political clout on the New Deal legislation that he passed four years earlier but he certainly had a rather large contingency in Congress (75/96 or 79% in the Senate and 333/435 or 76% in the House.) As history shows, the Democrats are going to need the White House, an overwhelmingly large majority in both houses of Congress, AND an excuse for packing the court that goes beyond ‘the current justices are bad.’

Also, this post isn’t strictly about Samuel Alito, but ‘Alito’ sounded like a better substitute for ‘Maria‘ than ‘politically conservative Justices who try to pass as judicially conservative Justices.’

My main source of information was my trusty first-edition copy of “The Supreme Court in US History” written by Charles Warren and published in 1922.


1 Response to “Court-Packing Is A Terrible Idea OR How Do You Solve A Problem Like Alito?”

  1. 1 DailyWrit Starts Babbling at DailyWrit

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Categories

Random Posts

  • Advocate Scorecard: Win-Loss Record for the Top Advocates: I've compiled a really interesting list featuring the win-loss record of every advocate from the SG's office and all of the top private advo...
  • Updated Term Charts: Starting this week, I'll be posting my updated charts on SCOTUSblog. You can find the first SB version of my charts here. More spec...
  • Solicitor General Record During OT08: I compiled the SG's win-loss record during OT08 in four different scenarios: When it took part in a case as Petitioner, when it took part as...
  • A Big Little Case: Next Wednesday, the Supreme Court will hear arguments in an interesting case about water law in Montana, PPL Montana v. Montana. The case wi...
  • Predicting the April Sitting: I run into the exact same debate every year around mid-January: which cases will be heard during the current term and which will be pushed o...