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Old 04-02-2019, 02:20 PM
Thing Fish is offline
Join Date: Sep 2001
Location: Chicago (NL)
Posts: 3,902
It appears some people need to calm down and remember that, as far as I can see, no prominent Democrat is actually advocating that we expand the Court the minute we get full control of government. Whether that gets seriously on the agenda will depend on just how obstructionist the conservative majority decides to be, in the event that public opinion swings to the left. Hopefully the Republican judges will prove more deferential to the popular will than their politician counterparts have, and extreme measures can be averted.

As far as I can tell, partisan court-packing laws have been passed on three occasions in American history; the lame duck Federalist Congress reduced the size of the Court (which happens by attrition, not by immediately unseating sitting Justices, remember) in 1801 to prevent Jefferson from getting to make appointments.. This was promptly undone by the Jeffersonians in 1802.

During Reconstruction, the Republican Congress reduced the size of the Court again to prevent Johnson from making appointments, then increased it again once Grant was in office (this act of 1869 established the Court at nine members, where it has remained since).

So it has happened in times of crisis and political realignment, high partisan rancor and mistrust, which certainly describes the present day. And, despite Roosevelt's experience, it has historically worked out OK for the parties that did it. It's not a tactic for normal times, when the opposition party may well be back in power at the next election. It's a tactic for preventing the Court from being dominated indefinitely by a faction which the voters have decisively rejected.