I don’t know why you’re being so roundly dismissive here. It’s nit picking to argue that FDR didn’t “try it.” He pushed it in one of his fireside chats, he actively lobbied Congress on it and had the support of the Senate Majority leader (promising him one of the new spots on the Court). And it did make it out of committee. There was strong Congressional opposition, of course, which ultimately killed it. But it wasn’t something FDR just introduced and then walked away from.
And just because he ended up getting reelected doesn’t mean FDR didn’t pay a political price for it. In the 1938 midterms the Democrats lost 72 House seats and seven Senate seats. This gave Republicans and conservative Democrats the numbers to prevent any further significant New Deal legislation from passing Congress during the remainder of his Presidency.
FDR was for packing the court, but I don’t consider the process to have gone far enough to say that he tried doing it.
As for the 1938 elections, I’d say that the recession that hit in 1937 and lasted more than 13 months had far more effect on the voters than the court packing scheme which took place early the previous year. To placate the conservatives and the business interests, FDR cut spending and tried to balance the budget, exactly the wrong moves for the time. He corrected that mistake the next year, but that just made him look weak and indecisive. By 1940, though, the economy was much improved, Roosevelt won a third term, and the Democrats picked up seats in the House.
Remember also that the Democrats had gigantic majorities in both the House and Senate in both 1938 and 1940. They were never in any doubt they would have total control. It was the conservative South that hated the New Deal that FDR was doing battle with almost more than the Republicans. He had the spine that I wish Democrats had today.
Yes. And if the goal is to add only 2 justices, I’d say they should refer to it as balancing, or rebalancing the court, because adding 2 justices only returns the court to having Chief Justice Roberts as the swing vote, with a 6-5 conservative lean. The hope would certainly be for an additional conservative retirement, I guess, but it’s not like it’s a plan to add enough to get a left-leaning majority by itself. It’s not “court packing,” tempting as it is to use that existing term.
I’m a democrat but this issue conflicts me. There hasn’t been a “liberal” majority SCOTUS since LBJ was president and that Trump has already done so much damage in his four years which will be reverberating by his three SCOTUS appointments long after he’s gone is a travesty. But where’s the end game if Biden packs the court. Once the arbitrary norm of justices is exceeded once there’ll never be enough for whoever holds the cards in Washington at any given time.
Right now, control of the court is based on the randomness of death. If the court is expanded, control will change each time one party gets control of the WH and both Houses of congress. The latter seems superior to me than the former.
Further, expanding the court greatly increases the chance of term limits (still a longshot, but less of one in that case).
iiandyiiii, are you saying that you think it’s a better idea that the court be controlled by political party? I really don’t see how that would be better than a life-time appointment (“randomness of death”). Could you elucidate, please?
It would then be specifically beholden to the party that put them in power. I’m given to understand the supposed rationale of the current system is that the sitting justices are removed from such political concerns and can then rule based on the law and the constitution.
As a lawyer, I think 11 is pushing it, and 13 is probably the outer limit if the structure of the court – and its decisions’ finality – are to remain. Larger than that would mean either sitting in panels of fewer justices, which would undermine finality, or becoming something more akin to a legislative body. You can’t just keep expanding, if you want a functional court.
That’s a product of who happens to be on it right now. They’re not actually beholden to a party; they’re in bed with it. What you’re proposing is electing them. There’s no way that will be anything other than a political party power play and a disaster.
It’s already a disaster. It just happens to be a disaster that benefits the GOP. SCOTUS as a fair arbiter of law is dead, and has been dead for years. Ultimately, we need a real fix that gives the court some serious appearance of actual fairness and non-partisanship. But in the meantime, the Democrats should fight with all they have to at least maintain a chance of abortion rights, gay rights, the ACA and future health care reform, etc., none of which are likely with this GOP court.
I believe your assessment is incredibly incorrect. Yes, it seems that, at the moment, the Supreme Court may be broken, but not irrevokably so. Your suggestion of having the justices elected, and for fixed terms, is a guarantee of a disastrous court that will only be concerned about their own elections, not issues of law and the constitution.
It wouldn’t have the justices “elected” – but term limits are the only possible way to restore some semblance of non-partisanship. The only way this all-or-nothing stuff for every single vacancy changes is if vacancies become routine and common, rather than rare and random. That means term limits, and that means expanding the court. Doing nothing just means a GOP court for a generation, which means no gay rights, no abortion rights, no voting rights, no health care reform, and much worse.
That’s how most state supreme courts are selected.
Are state supreme courts disasters?
Anyway, I don’t think that that is actually what iiandyiiii is suggesting, they would not be elected, they would still be nominated and confirmed through the same process as today. Yes, SCOTUS would be more malleable based on the makeup of the government, but that could be considered a feature, rather than a bug.
SCOTUS has never been required to ruled based on law and the constitution. They have their favored outcomes, and then justify it based on their interpretation of the law and the constitution. The better, the smarter and more experienced a jurist one is, the more one can find ways of justifying whatever outcome they desire.
If SCOTUS ruled only on the constitution and law, rather than on their interpretation of it, then all decisions would be unanimous. Most decisions are in fact unanimous, because the law and the constitution are very clear, but obviously, those are not the controversial ones that most people are concerned about.
You’re making good points, but you went off the rails here. If the constitution and law were that clear, we wouldn’t even need higher courts. Any old judge would be sufficient to rule on an issue.
It’s like saying that if coders coded properly software would never fail. Not so. Even the best can’t possibly imagine all the millions of different functions and different products that need to fit together and flow perfectly.
Laws are similarly inadequate. The real-world provides zillions of potential examples that were not anticipated by the writers, and the older a law is the more true this becomes. The Internet has raised so many questions about what older laws are applicable and what changes need to be made to accommodate the new reality that a whole court system could profitably be created to concentrate on those issues.
Worse, facts also change over time. For abortion, to take the starkest example, the minimum age of viability keeps dropping. Should the law track the science day by day? What would that even look like?
As for unanimity, many unanimous opinions are cobbled together by compromise so that the court looks like it speaking authoritatively. Brown v Board of Education was one major example. And, of course, dissenting opinions frequently become the basis for future majority opinions as the world changes.
Mr. Dooley said that the Supreme Court follows the elections, and that was back in the 19th century. It will always be a political institution as long as people write laws and have to interpret them. I would profoundly suspect a court that issued nothing but unanimous decisions, knowing that they had been bought off.
Were I in charge, I’d expand the court to dozens, if not a hundred. And then for every case which comes before the court, randomly pick 9 justices out of that pool. I’m sure there are potential issues with this plan, but it’s gotta be better than our current solution.