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The Supreme Court’s Nine Could Be Saved By A Stitch In Time (Washington Examiner) October 21, 2020

Posted by daviddavenport in Op/Eds.

Senators this week proposed a simple new constitutional amendment: “The Supreme Court of the United States shall be composed of nine justices.” The same amendment was introduced in the House of Representatives last month. This is a good idea that, unfortunately, looks to be a hard sell.

Even though the Constitution does not specify the size of the Supreme Court, it has been nine members since 1869. Prior to that, Congress changed it six times, ranging from five to 10 members. As the late Justice Ruth Bader Ginsburg put it, “Nine seems to be a good number.”

As if Supreme Court appointments were not sufficiently controversial and political already, some have suggested that Democrats should “pack the court” by adding new liberal justices if Joe Biden and Kamala Harris win the election. Of course, this will only further politicize the court because the next Republican president will be tempted to add new seats for conservatives. Just as we live in a yo-yo world of one president signing executive orders and the next president canceling them, we will live with an ever-expanding and more highly politicized Supreme Court.

President Franklin Roosevelt tried the court-packing trick in 1937, without success. Frustrated that the Supreme Court was blocking important New Deal legislation as unconstitutional, Roosevelt proposed to grow the court from nine to 15, allowing him to appoint six new justices who better reflected his views. The idea was widely criticized, and the Senate voted it down 70-20. Still, even the attempt seemed to have an effect as the Supreme Court’s rulings began to swing in Roosevelt’s direction.

Let’s face it, growing the court would not be done to improve its performance but rather to change its politics. Yet, both Biden and Harris have declined to say whether they would attempt to pack the court if they won. The best we have is Biden’s statement that he “is not a fan,” but he and Harris both refuse to answer the question directly when asked. That is not a good sign.

So yes, a constitutional amendment makes sense, but it will be difficult to pass. Like any constitutional amendment, it will require a two-thirds vote of both the House and the Senate, a high bar these days, and then ratification by three-fourths of the state legislatures. Doubtless, that’s why we have not amended the Constitution in nearly 30 years.

The real problem is that the Supreme Court has become too powerful, with most of the social questions and many of the political questions now settled there. Rather than Congress stepping up to its responsibilities, it ends up deferring tough decisions to the courts. The Founders would be surprised, having said in Federalist No. 78 that the judiciary would be “beyond comparison the weakest of the three departments” of the federal government.

The Founders would also be surprised that a lifetime appointment on the Supreme Court could now mean 30-40 years. Ruth Bader Ginsburg, who passed away recently, had served 27 years. Justice Clarence Thomas is coming up on his 29th anniversary on the court. It is widely acknowledged that William O. Douglas, who served 37 years, was not entirely capable late in his term. This means that each appointment takes on huge political weight, producing confirmation battles described as “Armageddon.”

Instead of court-packing, which is a purely political solution, how about addressing the real problems? First, let’s develop term limits for Supreme Court justices of 18 years, allowing each four-year president to appoint two. Then we should challenge Congress to step up to its responsibilities, passing laws that deal with the tough issues rather than deferring them to federal agencies and the courts. Those reforms could make a real difference.

Meanwhile, let’s get behind the constitutional amendment to limit the Supreme Court to nine members. It’s a stitch in time that could truly save nine.

To read the column at the Washington Examiner:


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