With talk about SCOTUS being the hot topic again these days:
The most common objection raised against packing the Supreme Court (i.e., expanding by 4 justices) is that the opposition party could simply return the favor on an even bigger scale (add 8 or 10 justices) when it was “their turn” to do so - that is, the next time they controlled the Senate and the presidency. And then this would escalate into an uncontrollable tit-for-tat.
The parallels to nuclear warfare are quite clear: It’s like how if you launch a nuke or two, your opponent will launch more, and then you launch more, and then it eventually turns into an utterly destructive escalating exchange.
But - in the same way that a massive nuclear first strike can wipe out your adversary’s capability to respond if he has no missile defenses and also no ability to retaliatory-launch in the 45 minutes it takes your nukes to hit his silos, a similar tactic could be done with SCOTUS whereby one side packs in a massive amount of justices at the beginning in a game-ending and game-winning move in one single blow. Rather than four or six extra justices, just go with 100 or more right there.
100 diehard left-wing or right-wing justices, grafted onto the current nine-member Court, would be a game-ender. They would have essentially unlimited power over everything, and with no check or balance on them, there would be no further recourse once they had made a ruling. Even more importantly, they could prevent the opposing party from packing the court again down the road, ensuring they never get a chance to “answer back.”
The trick, of course, would be to get such a massive Court-packing through the Senate in the first place; even a big Democratic or Republican majority might balk at this and you wouldn’t get to the 50 necessary. But if it did go through, it would be the Final Word in American politics.
Assuming that these new Justices didn’t just completely throw out the Constitution and rule as dictators (which would be difficult as they don’t command any battalions), I don’t see how they could prevent the other party from retaliating if/when they had control of the government. The Constitution very clearly gives Congress the authority to set the size of the Court, they’re not going to be able to interpret that away.
I have been in favor of serious reform of the SCOTUS since the 1970s, and I am in favor of it now. I think the way the court has operated essentially from about 1850 on, is not compatible with a properly functioning democracy and I think the court has done far more harm to American democracy than good over that time. I am happy that now both sides of the aisle are at least primed to be skeptical of the courts, but I have no hope that they will come to an agreement to fix it. Unfortunately until there is some consensus agreement on a fix, no fix will be possible. There won’t really be a nuclear first strike result if the Democrats say, add 75 justices to the court this month. Yes, that will make the current justices totally irrelevant. But it doesn’t stop the Republicans from adding another 150 justices the next term. A major downside is the structure of this action also will seem constitutionally invalid and I think make our country in an even worse state politically.
If I could wave a wand and redo history, I would go back to 2009 and tell Obama that the great matter of his Presidency needs to be American constitutional reform, specifically to add more firm protections for democracy and reforming the Supreme Court. Not the establishment of a national health insurance scheme. While health insurance is important, democracy is more important.
Unfortunately we don’t live in a fairy tale world. Any reform of the Supreme Court should not be to disadvantage a specific faction, but should be to significantly insulate the court from easy partisan manipulation, and to make the court function in a more non-partisan manner. We have discussed a number of solutions that would attain just that, but none are seriously implementable right now (legislatively or constitutionally–both have their problems, a constitutional amendment is unworkable and any statutory fix is likely to only be temporary.)
If you’ve got a Legislature and President willing to ram through 100 radical right/left wing Supreme Court Justices to cement their party’s power for a generation, what’s the point? Just seize power and do away with the Court entirely.
Personally, I favor adding one new justice per month, and at the same time introducing a Constitutional amendment to put in place an actual process for naming justices (which would, among its other effects, remove the ability to add one per month). The longer the Republicans waffle about the amendment, the more Democratic justices there will be, until such time as Republicans again control both justice-naming bodies.
The real solution should have been, and always was, to have a term limit for the justices. That would always have been difficult, requiring a constitutional amendment, and would be utterly impossible now.
Perhaps in some future generation (certainly not in the Near Foreseeable Future) it could become possible again.
ETA: @Martin_Hyde fantasizes, above, about turning back the clock and making Supreme Court reform the Numero Uno priority, when it might have been possible. If it ever becomes politically possible again, this should indeed become Priority Numero Uno. More ETA: That, plus the whole gamut of voting rights protections also must be Priority Numero Uno. Two Priorities Numeros Unos.
You forget Congress’ power of impeachment & removal from office. There would no structural impediment to a future Congress shrinking SCOTUS back down, and selectively impeaching as many justices as necessary.
True, but expanding the Court can be done with a simple majority, whereas impeaching a Justice would need 2/3 of the Senate. And short of impeachment, Congress can’t immediately shrink the Court; if it passed a bill changing the number of Justices from 109 back to 9, the effect would be that the next 100 Justices to die or retire wouldn’t be replaced, which obviously would take a while.
That’s not how nuclear warfare theory works. The instant that first strike is detected the situation becomes use it or lose it, so the only logical response is to fire everything in retaliation before it can be destroyed on the ground or in the silos, resulting in mutually assured destruction.
From what I’ve read, the argument in favor is that due to procedural time constraints, there’s a magic number of confirmations that is small enough to fit into one term, but too big for the opposing party to achieve the 2 for 1 match required to overcome it.
The “second-strike” party would forever be playing catch-up to surpass the nominees of the other party (which, having the first-mover advantage of numbers, would only need to confirm a few nominees to stay ahead). They would have to forego all legislative efforts (and sweet sweet lobbyist bucks) in a doomed effort to catch up, all for the uncertain payoff of getting favorable decisions on cases that are years away in the pipeline. Theoretically, by winning more elections, they could get more bites at the apple, but they’d have no achievements to run on except nominating hundreds of justices who won’t have had time to build a track record. Bo-ring.
I’m not saying it’s a great theory of change, but I also don’t see any workable options that don’t include time travel or mass alien abductions of Congress-people.
There’s no constraint to the number of nominations the Senate can confirm during a session of Congress. They can — and often have for lower-level nominations — pass a group of nominees as a block in a single vote.