“Hypocrisy is the homage vice pays to virtue.” – Duc de La Rochefoucauld
Tuesday’s first presidential debate of the 2020 elections will cover six topics, “subject to possible changes because of news developments.”
One news development that is “reverberating” on the eve of the debate and which could change the debate format is the New York Times’ explosive weekend revelation of Trump’s shameful “tax avoidance” shenanigans,
But the Supreme Court is also slated to be a hot topic.
In their frustration about the GOP’s use of naked power on the latest Supreme Court nomination, some Democrats have been toying with the idea – should they win the presidency and a majority in the Senate and retain a majority in the House — of expanding the number of Supreme Court Justices to, say, 13.
Whether it will ever come to that or not, several interesting Constitutional, legal and historical questions arise.
Question such as:
• Does the Constitution mandate a certain number of S.C. Justices?
• Have there always been nine Justices of the Court?
• Can Congress change the number of Justices?
• Has anyone or any (government body) tried to “pack the Court”?
• If conditions are “right,” will Democrats “pack the Court” after the elections?
The simple answers are No, No, Yes, Yes and “Who knows.”
Here are some details:
The Supreme Court was established by the U.S. Constitution but did not specify the number of Justices.
Under. Article III, Section 1, Congress has broad authority to establish the court system, including the number of judges. The Judiciary Act of 1789 set the number at six and the first Supreme Court with that number of judges first assembled in 1790.
During John Adam’s presidency, the Judiciary Act of 1801 reduced the number of Justices to five “in an attempt to limit incoming President Thomas Jefferson’s appointments.” However, the new incoming president and his Congress soon raised the number back to six.
In 1866, Congress briefly reduced the number of Justices to seven, but that number only lasted until 1869.
In 1869, Congress passed legislation once again settling the number of Justices at nine and the Court has stayed that way for more than 150 years.
But that does not mean that there has not been an attempt to change the number of Justices for political purposes or, as it has come to be known, to ”pack the Court.”
In 1937, frustrated by adversary Supreme Court decisions, President Franklin D. Roosevelt, proposed a plan to gradually add Justices to the nine-member Court, until there were 15. Calling it Roosevelt’s “court-packing plan,” Congress rejected the proposal.
Which brings us to the last question: “If conditions are ‘right,’ will Democrats attempt to ‘pack the Court’ after the elections?” — and to today.
After Republicans in 2016 denied a Democratic sitting president with eight months remaining in his presidency even the courtesy of a hearing on his Supreme Court nominee, Senator Mark Rubio said, “I don’t think we should be moving forward with a nominee in the last year of this president’s term. I would say that even if it was a Republican president.”
Three years later, the same Senator, perhaps presaging the results of going back on his word, announced plans to propose a constitutional amendment to permanently limit the Supreme Court to nine Justices “to prevent the next political and cultural flashpoint: the packing of the Supreme Court for partisan gains.” This week, U.S. Senator Thom Tillis (R-NC) co-sponsored Rubio’s amendment.
No one knows what the elections will bring and what Democrats will do if they hey are successful.
On this issue, Chris Talgo, who is very weary of Democrats “doubling-down and upping the ante,” writes at The Hill:
What’s good for the goose is good for the gander. If the Democrats are willing to blow-up a sacred institution for political ends, you can bet your bottom dollar that this will instigate a new era of dysfunction in the nation’s capital.
Some of the real questions should be, who is “the goose” and who is “the gander” and, as to “a new era of dysfunction in the nation’s capital,” are you kidding me???
