A raft of declared Democratic presidential candidates has rushed to support the idea of changing the makeup of the current Supreme Court.
Along with granting 16-year-olds the right to vote and eliminating the Electoral College, packing the Supreme Court is another in a series of “let’s play with the U.S. Constitution for political purposes” proposals that shake the foundations of separation of powers and checks and balances protecting against the concentration of power in any one branch of government.
It’s been tried before, and it failed — for all the right reasons.
After a series of stinging Supreme Court defeats of elements of his New Deal legislation, President Franklin Roosevelt pushed a legislative effort to add more Justices to the U.S. Supreme Court with the Judicial Procedures Reform Act of 1937.
The Act, which was opposed by Roosevelt’s own Vice President John Nance Garner, would have granted the President the power to appoint up to six new Justices, one for every current Justice who reached the age of 70 years and 6 months. It was widely known that Roosevelt’s aim was to pack the court with Justices who would approve his New Deal legislation.
Fast forward to the modern era, and the idea has been likewise cast aside by most on the left and right.
Calling Roosevelt’s court packing plan a “bonehead idea” whose partisan objectives were “seen clearly,” then-U.S. Sen. Joe Biden in 1983 said the effort to pack the high court “put in question for an entire decade the independence of the most significant body in this country.”
While the Constitution is silent on the number of required Supreme Court Justices, the current roster of nine has been the authoritative standard since the Judiciary Act of 1869, when Congress determined the court would be made up of a Chief Justice and eight associate Justices. In theory, Congress has the authority to change that number through the legislative process.
What Congress does not have the authority to do on its own is to create term limits or other rotational procedures for changing the makeup of the court — including recent proposals for sitting Justices to appoint other Justices.
Art. 3, Sect. 1 grants Justices unlimited terms that can only end by death, resignation, or impeachment by Congress. So, in terms of term limits or rotation, a constitutional amendment would be required. Further, the Senate plays a key constitutional role in confirming nominees — a role that would be presumably be abandoned by Justice-led appointments.
And what are the odds of amending the Constitution? It’s a high hurdle, to say the least. According to the Constitution, a proposed amendment requires two-thirds majorities in both the U.S. Senate and House, after which it is sent to the states, where three-quarters (roughly 38 states) must approve either by state legislature votes or state convention.
The last amendment to the Constitution was the 27th Amendment, passed in 1992. It says that no change in compensation for members of Congress can take place until after a House election, an amendment that was proposed in 1789 as one of the original 12 amendments proposed. When it comes to the U.S. Constitution, change comes slowly.
As President Obama famously said, “Elections have consequences.”
The organic constitutional method for changing the makeup of the Supreme Court is through the nomination process, a constitutional power reserved to the Chief Executive and checked by the U.S. Senate, which must confirm. The Senate confirmed two of Obama’s nominees, Elena Kagan and Sonia Sotomayor, matching President Trump’s successful picks, Neil Gorsuch and Brett Kavanaugh.
Based on the number of Justices who have served and the number of U.S. Presidents, the average is 2.6 Justices per President — a significant imprint on the makeup of any particular high court era. In other words, the transition of personnel on the Supreme Court is historically more fluid than current Democratic presidential candidate court critics would have us believe.
How did Congress, which in 1937 was made up of Democratic super-majorities in both chambers, respond to the court packing plan proposed by Roosevelt? Angry rejection.
The Senate Judiciary Committee sent a scathing negative recommendation to the full Senate with these words: “The bill is an invasion of judicial power such as has never before been attempted in this country…. It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government … It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” Period.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general.
Click here for Newsmax piece on court-packing