The judicial packing debate continues
From Kalvis Golde
on February 8, 2021
at 6.46 p.m.
Packing the Supreme Court or increasing the number of justices on its bench has been rare in American history. Certainly the majority party has traditionally viewed this as risky: change the size of the court now only so that the members of the opposing party do the same when they return to power. But it was also rarely needed. The threat of court packaging alone was sometimes strong enough to generate court decisions based on the priorities of the political branches.
With the announcement of the first members of President Joe Biden’s commission to consider judicial reform proposals in recent days, whether the current administration will try again to grab the Supreme Court. To answer that question on Monday, the Committee on Justice, a conservative advocacy group, hosted the latest in a series of panel discussions on judicial reform. Panellists, who come from across the political spectrum, considered the likelihood of court wrapping – at least in the short term – unlikely.
“Court packaging would be almost, if not entirely, new,” said Professor Joshua Braver of the University of Wisconsin Law School. Braver highlighted two previous cases in which Congress successfully resized the court for political reasons.
First, outgoing President John Adams and the Federalists in Congress reduced the number of Supreme Court seats from six to five in 1801, only to reinstate new President Thomas Jefferson and a new anti-federalist Congress a year later. Second, after the Civil War, Congress increased the number of judges to 10 to establish the majority of Union-appointed judges and reduced it to seven in 1866 to prevent President Andrew Johnson (in Braver’s words: “A President without a Party”) of filling a post before the court was finally expanded back to its current nine-seat bench in 1869 following the election of President Ulysses S. Grant. Other changes to the court’s size in the 19th century coincided with the creation of new county courts (which required the addition of new judges to the “ride circuit”) and were not politically motivated, Braver said.
That story, according to the panelists, should serve as a cautionary measure to Democrats pushing to expand the court after taking control of the White House and both houses of Congress.
Professor Ilya Somin of the Antonin Scalia School of Law at George Mason University brought the Democrats ‘current position to a response to one event: the Republicans’ “hypocrisy” in seeking to endorse Amy Coney Barrett in the run-up to the 2020 election after they Refused Consider Merrick Garland’s nomination during the previous presidential election. This move was the culmination of 30 years of “bilateral escalation”, Somin said. But he distinguished court wrapping from “skull digging” in connection with nominations. The expansion of the size of the Supreme Courts was a catalyst for the democratic decline in other countries of the world.
This point was supported by Thomas Jipping from the Heritage Foundation. “We can talk about what the norms were” or “what steps the Republicans took,” he said, but it is “no comparable answer” for Democrats to restructure the Supreme Court. Whatever the reasons for such a move, Jipping continued, “The purpose is the same … to destroy the independence of the judiciary” and to place the courts under the control of the elected branches.
Braver was skeptical. On the one hand, he spoke out in favor of reforms other than court packaging that would “curb”instead of colonizing“The Supreme Court and let its legitimacy be“ violated but not broken. ”On the other hand, however, he doubted any less controversial changes – from 18-year time limits (which Somin supported) to a code of ethics to the court’s disqualification certain questions – “a great consolation” would be To Progressives. Braver agreed Somin that court packing would be an “escalation,” but failed to see how it would deviate from recent moves to bring politics into court nominations.
Raise the problem as “getting up” [political] Temperatures, ”the moderator of the event, Judicial Committee President Curt Levey, asked what could be done to lower the heat. Braver suggested that the court “could step down if it encounters progressive priorities,” a proposal that Jipping derided as nothing more than “letting.” [one side] win more. “In response, Braver pointed to previous Supreme Court postponements in response to impending reforms: the creation of a judicial review in Marbury v Madison in 1803, the upholding of New Deal legislation at the West Coast Hotel v Parrish in 1937, the reinstatement of the death penalty in Gregg v. Georgia in 1976.
Somin raised a qualification. It is one thing for the court to have withdrawn in the face of “overwhelming opposition” from the 1803 or 1937 electoral majorities, he said; It would be ‘very different’ today if it were to deal with issues like abortion or the second amendment, which keep the electorate close.
As so often in these discussions, the last question came back to Biden’s commission. Citing that the others shared their predictions for the commission, Jipping described the commission as a “cloaking device” for packing in court, while Somin said it was “unlikely, given the views of his orchestrator, Democratic adviser Bob Bauer-Levey to recommend packing in court, ”Braver asked for his opinion. Braver leaned on Somin’s position, suggesting that the other members reported so far, like Bauer, are unlikely to support the expansion of the Supreme Court. That route is one where Progressive, a label he attributes, is still “really at odds,” concluded Bauer.