Depending on one’s partisan leanings, the latest national furor over so-called “court-packing” started with the failed 2016 Supreme Court nomination of U.S. Court of Appeals for the District of Columbia Chief Judge Merrick B. Garland. Former President Barack Obama nominated Garland as the successor to the late U.S. Supreme Court Justice Antonin Scalia.
Or, partisans from across the aisle say, it was begun by the current Supreme Court nomination of U.S. Court of Appeals for the Seventh Circuit June Amy Coney Barrett by President Donald Trump in an attempt to fill the seat vacated by the death of the late U.S. Supreme Court Justice Ruth Bader Ginsberg.Like everything else in our country these days, there’s are decidedly partisan sides to the court-packing debate.
Democrats, wary of a conservative Supreme Court majority and seeing the political handwriting on the wall that the court is likely to become more conservative with the confirmation of Judge Barrett, see an effort to “pack” the court with more liberal judges as the only short-term solution to the philosophical split of the current nine-member Supreme Court. Barrett’s confirmation would escalate this issue. Republicans are just as invested in maintaining the conservative advantage by resisting any court-packing effort.
The U.S. Constitution in 1787 did not establish a certain number of Supreme Court justices. The Judiciary Act of 1789 established a high court of six justices. With the Supreme Court at the top of a three-tiered federal judicial system, problems arose.
The lowest level was the federal district judges, who originally heard minor federal disputes and maritime cases. The Judiciary Act organized a second tier of federal circuit courts, comprised originally of two Supreme Court justices and one federal district judges.
Each Supreme Court justice was assigned a circuit district, so those early jurists traveled almost constantly to hear trial cases and appeals. Partisan battles over the makeup of the circuit court quickly developed.
That led to the Judiciary Act of 1801, which created six new federal circuit judgeships and reduced the Supreme Court from six to five members. But that changes happened at the end of the term of President John Adams, and his successor, Thomas Jefferson, repealed the bill. The high court reverted to six members and eventually to seven in 1807 when another federal circuit was added due to America’s westward expansion.
By 1837, the growth saw President Andrew Jackson and Congress add two more federal circuit districts and two more Supreme Court justices, bringing the total to nine members. In 1863, Congress and President Abraham Lincoln added a tenth federal circuit and a tenth Supreme Court justice.
But the aftermath of the Civil War saw northern congressional Republicans fearful that new Democratic President Andrew Johnson of Tennessee would influence the courts to adopt “Black codes” and limit the rights of the newly freed slaves. Congress adopted the Judicial Circuits Act, which dropped the Supreme Court to seven justices.
In 1869, Republicans passed another judiciary act and restored the high court to nine members. The nine-member Supreme Court remained stable until a divisive effort to actively pack the court with judges who would support this New Deal legislative package’s second phase.
The so-called “Nine Old Men” of the 1937 Supreme Court has been hard on FDR’s original New Deal initiatives. So, in the name of helping reduce their workload, he advocated expanding the court to 15 justices. The move backfired when the public and the press roundly panned the effort.
While there’s nothing unconstitutional about court-packing, it’s a bit like summarily rejecting baseball umpires until you find one who will call the pitch that’s clearly a ball a strike to the benefit of one’s favorite team.
Given the hyper-partisan nature of our country right now, court-packing as the new normal won’t bode well for the future of the separation of powers.
Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.
29 comments:
A lot of folks are about to be surprised. There isn't going to be any Court packing for one. Abortion will not be outlawed. Nothing is going to change on gun laws or voting rights either.
Gorsuch & Kavanaugh are not zealots like Thomas and Alito. Roberts isn't going to break precedent in many cases.
Congress obviously needs to write a new Health Care Law, I think the court will force their hand sooner or later.
Notwithstanding the leanings of the recently departed Ginsburg, it's not the authority or responsibility of 'the courts' to write or rewrite the Health Care law (if we need one) or any other law. A minority of the court believe that's their job.
But, I do think Sid misunderstands the term 'packing the court'. Packing the court applies to the notion of those in charge having the clout to add to the number of seats, thereby establishing a virtually impenetrable barrier. It has nothing to do with the next nominee, the current nominee, the last nominee or a nominee from years ago.
"Court packing" made possible by an act of Congress has always been a possibility since it is not unconstitutional and has a real history in partisan politics. Politicians are being hypocritical when they make a big deal of Biden's reluctance to promise that the Democrats will not pack the Court. Both parties will threaten that option when necessary. On the other hand, Trump's reluctance to promise that he will not peacefully concede the election if he loses is a much more serious threat. That is clearly against the letter and spirit of the constitution. I will probably vote for Trump but hold my breath, I am not sure he is not a tyrant. That's sad.
Obama packed the DC Circuit when it made a few rulings he didn't like.
@9:51
I seem to remember the leftist media crowing the same line about trump refusing to accept the results of the 2016 election. And then that same media proceeded to spend the next 4 years refusing to accept the results of the election. What has Trump actually done to make you question ig he is a dictator. The media at this point are complicit in treason. They went beyond freedom of the press and ibto comrikibal territory with the Steele Dossier.
Republicans already packed the court. They changed the rules to allow a completely partisan vote to confirm the justices. When they have the majority in the Senate, they have refused to allow a nominee to be brought to a vote. They will lie and trick their dim-witted base by spewing violent rhetoric at the left. They are the definition of hypocrisy. I don’t think the founding father’s considered the possibilities of such losers not being held accountable by the citizens. It’s a new world and the democrats will have to get in the mud and roll around to protect America and it’s very foundation.
Kingfish,
Is filling vacancies considered packing the Court???
Yes, you are correct. Congress packed the DC circuit but did so at Obama's instigation.
You don't like how this is going down, don't blame Republicans. Blame Harry Reid. He was warned this would happen but drunk with power, he changed the rules and started ramming things down Republican throats. You can't have it both ways. Do unto others as you want done unto you.
As for Garland, nominees of a President rarely, if ever, go through in an election year when the Senate is held by the opposing party. Its all about who has the numbers.
“It’s a new world and the democrats will have to get in the mud and roll around to protect America and it’s very foundation.“
Now that’s funny 10:39!
Folks seem to forget that Obama was a lame duck president when he nominated Garland, so there is a big difference between then and now. Trump may not get re-elected, but he's not a lame duck at this point. His nomination of ACB is completely legitimate, and the Senate should do their job and vote her up or down.
sid is smart enough to be one of the dem senators questioning ACB right now.
Wait until January, then you going to see more than Judges rammed thru, many are predicting as much as a 7 member swing in the Senate.
Can someone remind the crowd who the fella was that opined "elections have consequences"? Amy Klobuchar keeps asking the same thing over and over and over. They are trying to frame her for something she is not. Our healthcare needs reform, but Obamacare isn't it. It will require all sides, government, big pharma, the hospitals and doctors & the litigious attorneys that sue over everything to change and quit being so greedy to fix the issue. Throwing more mandates and money at it isn't the way. Making others pay for others insurance isn't it either. The left trying to frame it as a partisan issue and the ACA is the end all be all for our health insurance is laughable at best.
It’s interesting to see the right turn to militias to enforce their outdated opinions. Once they have no more legislative or executive powers, it’s going to be all they have left, hence why they are starting to criticize democracy and elections. The writing is on the wall and the left will always remember the last 4 years no matter what the right tries to claim as soon as the results are in.
This whole charade by the right is designed for one purpose, to take away health care from poor people. Unfortunately, their largely poor base is too dumb to see through their manipulation.
I am so tired of the this left and right BS! Those making incomes of less than ten figures annually are pawns of the people that really run this country. We as a people need to make our politicians accountable to all Americans instead of the their filthy rich grandmasters. The extremely rich and corporations run the USA. It has been this way since the end of the Revolutionary War. The only time we ever have change is when the commoners organize and demand it in such a way that the change has to happen.
Let's unplug from the f**ing Matrix. Democrats and Republican leaders serve only their masters! We of the general voting public are not their masters. Let's put our own in office to serve the good of us all.
I laugh at the left who thinks ACB is immediately going to take away their free healthcare like oxygen immediately. Remember they only received this freebie by a loose(and I mean very loose) supreme court decision.
12:52 PM…Sorry, but a really big difference in Republicans and Democrats is law and order.
The right doesn’t make excuses, as an example, for six stupid rednecks too dumb to know that they ain’t gonna start, nor lead a civil war, if ever this is one.
The left lets its base burn cities, loot, kill, including an 8 year old in Atlanta, take over city blocks, etc., while so-called reporting the incidents as “mostly peaceful protests.”
Make no mistake, the lawlessness Democrats not only tolerate, but make unlimited excuses for; it ain’t happening in Republican controlled cities, from militias, fascists calling themselves Antifa, BLMers, or anybody else.
So, save your leftist liberal professor like horse shit for those brainwashed so much so that they don’t have enough common sense to do the simple matter then know better.
@11:29, so what’s the law say about lame duck presidents nominating a Supreme Court justice? Oh right, it has happened multiple times throughout our nations history and was merely a meaningless excuse for their base. Please explain why a second term president shouldn’t be allowed to nominate judges in your own opinion.
10:37 I didn't say he was a dictator, I said he MIGHT be a tyrant. He has to be the first president in history to be unwilling to say he will accept the results of an election if he loses. The media did not make that up. If he refuses to give up power he is a tyrant. MIGHT be.
You cannot compare that kind of determination to the deceitful exercise of free speech by the leftist media or persons you disagree with. This election will be close and both parties should commit themselves to a peaceful transition or retention of power no matter who wins. At least we should count on that!
Sid Slater: “While there’s nothing unconstitutional about court-packing, it’s a bit like summarily rejecting baseball umpires until you find one who will call the pitch that’s clearly a ball a strike to the benefit of one’s favorite team.
Given the hyper-partisan nature of our country right now, court-packing as the new normal won’t bode well for the future of the separation of powers.”
Never been a fan but must admit Sid’s column was informative and very objected.
And…like KF said, Harry Reid created this mess…kind of.
What many of these new comers might not realize is ole Harry got himself in a big jam with his comments about Obama being a 'light-skinned' African American 'with no Negro dialect, unless he wanted to have one.’
And that is a direct quote so when you get triggered on how racist that comment was, don’t shoot the messenger…blame Reid cause he said it.
Reid went from being a 2nd Amendment advocate highly rated by the NRA and somewhat of a blue dog Democrat, to doing whatever Obama told him to do…which almost certainly including the nuclear option of doing away with the filibuster in November of 2013.
Most polls has Georgia turning blue,if it does the Republicans better hope Coney is voted down.If she isn't voters especially women voters will never forget or forgive Republicans.
Sid said: "so-called court-packing”.
This guy is trying to be relevant by using this month's buzz words.
But Sid does try.
Funny, I haven't heard heard him mention his beloved Miss'sip State DAWGS in a while.
Why is that 3:09? Please explain.
Has nothing to do with lame-duck status or being up for reelection. It's all about which party holds the senate. If Obama's party had held the senate when he nominated Garland, Garland would have been confirmed. As it was, republicans held the senate and refused to take-up the matter of Garland, which was their prerogative. If democrats held the senate today, the current nominee would not be taken up.
So if Biden wins in a landslide and the Dems pick up 5 or 7 seats, isn't this a mandate for the balance of legal reasoning to be adjusted to reflect the will of the people. Its likely the GOP will lose more group in 2024.
Sorry, 8:50, but the number of seats on the court and its vacancies are not determined by elections or perceived public opinion. Please tell us you aren't serious. And if you were serious, please tell us you don't vote.
What the hell is 'the balance of legal reasoning'?
@12:01, Anyone who pays taxes in Mississippi is helping to pay for my family's healthcare. I work for the State of Mississippi. My neighbor supplements my insurance premiums by paying taxes, but she can't afford to pay for healthcare for her own family. What's right about that?
My biggest problem is when politicians get on national television and straight out lie and then show no shame. Republicans lied and said they would never put in a Supreme Court justice in an election year. These people are leaders in this country and have no problem lying to us. How can anyone ever believe a word that comes out of their mouths from this point forward? All politicians are liars, but this Republican congress has won the championship. Somebody needs to give them their trophy.
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