# omnibus Supreme Court-packing thread **URL:** \ **Category:** Politics & Elections\ **Created:** [April 1, 2019, 6:10pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873 "2019-04-01T18:10:57Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 1, 2019, 11:02pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/61 "2019-04-01T23:02:08Z")
So, **Whack-a-Mole** , how do you think the number of Supreme Court justices is set? If Congress doesn’t have that power, then who does? And note that, under your theory that the President is allowed to nominate a new Justice any time they feel like it, you’re positing that the other branches _do_, in fact, have the power to mess with the Court. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 1, 2019, 11:02pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/62 "2019-04-01T23:02:30Z")
> [@Bone](#): > > It doesn’t, that’s the point. Congress establishes the size. They do it through legislation. Any idea you have that the size could be increased without legislation is wrong. Point out the part of the constitution that lets congress determine the size of another branch of government. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 1, 2019, 11:05pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/63 "2019-04-01T23:05:08Z")
> [@Chronos](#): > > So, **Whack-a-Mole** , how do you think the number of Supreme Court justices is set? If Congress doesn’t have that power, then who does? > > And note that, under your theory that the President is allowed to nominate a new Justice any time they feel like it, you’re positing that the other branches _do_, in fact, have the power to mess with the Court. That’s the thing…no one does. And yes, the president can stack the court. Read up on the history of the supreme court. It was not always nine people. Nine is just what they kind of settled on. I know, seems crazy, but as smart as our FFs were they missed a few things. This is one of them. And via impeachment the other branches can affect the court. Checks and balances. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [April 1, 2019, 11:17pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/64 "2019-04-01T23:17:07Z")
[28 U.S. Code § 1](https://www.law.cornell.edu/uscode/text/28/1): > [@](#): > > The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. > > (June 25, 1948, ch. 646, 62 Stat. 869.) This is a law, passed by the United States Congress and signed by the President of the United States\*. That’s what sets the size of the Supreme Court (since the Constitution doesn’t actually set a number); Congress (and the President) made that law, and of course they could change it. (Or a super-majority of both houses of Congress could change it over a Presidential veto.) Whether or not they _ **should** _ do so is another question. \*I mean, as far as I know passing this didn’t involve overriding a Presidential veto or anything. If I’m reading the parenthetical statement correctly, this law dates back to June 1948 (which doesn’t necessarily mean that a nine-member SCOTUS only dates back that far, Congress could have just been tidying up the U.S. Code or something like that). And of course the President of the United States can’t just appoint a couple of extra Supreme Court Justices, either. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [April 1, 2019, 11:24pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/65 "2019-04-01T23:24:24Z")
Oh, and from 1789 (the year the Constitution went into effect), we have [the Judiciary Act of 1789](https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=196), which among other things provided that: > [@](#): > > _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum… ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 1, 2019, 11:35pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/66 "2019-04-01T23:35:20Z")
> [@MEBuckner](#): > > Oh, and from 1789 (the year the Constitution went into effect), we have [the Judiciary Act of 1789](https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=196), which among other things provided that: Can congress pass a law setting the supreme court to one or zero people? What about a million? A hundred bazillion? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 1, 2019, 11:48pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/67 "2019-04-01T23:48:47Z")
> [@Whack-a-Mole](#): > > Can congress pass a law setting the supreme court to one or zero people? What about a million? A hundred bazillion? One person, yes. Zero people, no. A million or a hundred bazililon, yes. > [@Whack-a-Mole](#): > > Point out the part of the constitution that lets congress determine the size of another branch of government. You are moving from the specific to the general. Article 3, section 2 says, ‘\*SCOTUS shall have appellate jurisdiction, both as to law and fact … under such regulations as the Congress shall make. \*’ What regulations do you think Congress can make, and why is size not one of them? Congress can set the size of the Supreme Court. They have done this several times through the years. And since congressional acts are presumably constitutional, and the legislation was signed by multiple different presidents, and advanced my multiple different Congressional sessions, the burden is on you to present evidence that Congress does not have this power that they have exercised for the history of the country. There is no one with any credibility advancing the position you are advancing. All legal scholars, the congress, and all past presidents have not advanced the ideas you are advancing. Basically, you’re super duper wrong here. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [April 1, 2019, 11:54pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/68 "2019-04-01T23:54:47Z")
> [@Whack-a-Mole](#): > > Can congress pass a law setting the supreme court to one or zero people? What about a million? A hundred bazillion? Who the hell knows? Constitutionally speaking there has to be a Supreme Court of some kind (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”) and the Constitution refers at one place to the “Chief Justice”: _The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, **the Chief Justice shall preside** : And no Person shall be convicted without the Concurrence of two thirds of the Members present._ So, there has to be at least somebody who constitutes “the Supreme Court”, and if Congress (and the President) decide to just have one guy, I guess he automatically gets to be “the Chief Justice” and preside over the Senate trial of an impeached POTUS. Congress and the President (or super-majorities of both houses of Congress) could certainly decide that the Supreme Court should have a total of eleven members; or seven; or thirteen. It doesn’t even have to be an odd number, however obvious and common-sense it may seem that it should be; the Judiciary Act of 1789 established a six-member court. Note that if you read on in the Judiciary Act of 1789 it establishes the first inferior federal courts, with District Courts for each of the states; a total of thirteen District Courts because (duh!) there were thirteen states. Except, if you read it, there are District Courts for “the part of the State of Massachusetts which lies easterly of the State of New Hampshire” (AKA as “Maine”, which did not become a separate state until 1820), and a district for Kentucky (which was still formally part of Virginia, and didn’t become a separate state until 1792). So, there were no federal judicial districts for North Carolina or Rhode Island! What gives? Well, you see, the Judiciary Act of 1789 was enacted before North Carolina or Rhode Island had even ratified the Constitution. The Judiciary Act was enacted on September 24, 1789; North Carolina ratified on November 21, and Rhode Island held out until May 29 of the next year. The point of all this is that it’s hardly an exaggeration to say that the practice of Congress (and the President) setting the number of justices of the Supreme Court by federal law is as old as the Constitution itself. The motherfucking ink was barely dry on the Constitution, and Congress (and George Washington) were passing laws to establish the number of members of the Supreme Court. Because how the hell else would it be done? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 1, 2019, 11:56pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/69 "2019-04-01T23:56:35Z")
> [@Bone](#): > > One person, yes. Zero people, no. A million or a hundred bazililon, yes. > > You are moving from the specific to the general. Article 3, section 2 says, ‘\*SCOTUS shall have appellate jurisdiction, both as to law and fact … under such regulations as the Congress shall make. \*’ > > What regulations do you think Congress can make, and why is size not one of them? > > Congress can set the size of the Supreme Court. They have done this several times through the years. And since congressional acts are presumably constitutional, and the legislation was signed by multiple different presidents, and advanced my multiple different Congressional sessions, the burden is on you to present evidence that Congress does not have this power that they have exercised for the history of the country. > > There is no one with any credibility advancing the position you are advancing. All legal scholars, the congress, and all past presidents have not advanced the ideas you are advancing. Basically, you’re super duper wrong here. Nothing you noted says congress can set the size of another branch of government. That people have gone with it so far does not mean it is law. It only means no one has challenged it so far. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 2, 2019, 12:01am UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/70 "2019-04-02T00:01:00Z")
> [@Whack-a-Mole](#): > > Nothing you noted says congress can set the size of another branch of government. > > That people have gone with it so far does not mean it is law. It only means no one has challenged it so far. Article 3, section 2 says that SCOTUS acts under such regulations that Congress shall make. Are you asserting that size is not one of them? Given it’s done so many many times, that seems far fetched. But sure, someone can litigate that clause and seek to have SCOTUS opine on the matter. Maybe you can enlist Paul Clement or Lisa Black. But until then, this claim you make, is contra indicated by all available evidence. I really hope that all the Democratic candidates campaign on this though. It would be hilariously entertaining to watch them advance such spectacularly bad arguments. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 2, 2019, 12:04am UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/71 "2019-04-02T00:04:49Z")
> [@Bone](#): > > Article 3, section 2 says that SCOTUS acts under such regulations that Congress shall make. Where? I looked. Not seeing it. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 2, 2019, 1:16am UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/72 "2019-04-02T01:16:42Z")
> [@Whack-a-Mole](#): > > Where? > > I looked. Not seeing it. Article 3 isn’t that long. [Here’s the text: (my bold)](https://www.law.cornell.edu/constitution/articleiii) > [@](#): > > Section 1. > The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. > > Section 2. > The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. > > In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, **the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.** > > The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. > > Section 3. > Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. > > The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. But hey, if that’s not sufficient for you, feel free to file a lawsuit. I’ll laugh though. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [April 2, 2019, 1:36am UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/73 "2019-04-02T01:36:02Z")
Court packing would further hurt the legitimacy of the Courts, but the legitimacy of the courts is already seriously in question, and I blame mainly Republicans for that. And let’s face it: this is exactly what oligarchs want - they want people to lose faith in government and its institutions. If institutions operate in the public interest, the best way to destroy them is to convince people that they’re partisan. I don’t see a way out of this decadence except a peaceful mini-revolution, like the New Deal was back in the 1930s. For this to happen, people will have to lose faith in the oligarch’s economic system, which is what modern American capitalism is in its present form. A massive financial collapse will be painful, but it would also provide an opportunity for productive disruption. But it would be just that - an opportunity and nothing more. For revolutions to succeed, wisdom and competence are required. It’s entirely possible that anti-oligarchs would be just as incompetent and authoritarian as their oligarch nemeses - perhaps more so. America has had the great fortune of having been steered in the right direction by great leaders during times of crisis, but that doesn’t always happen. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 2, 2019, 1:10pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/74 "2019-04-02T13:10:50Z")
In the long term (which isn’t even that long; any timespan longer than two years or so), we need a Constitutional amendment to establish just how justices of the Court are chosen. Any solution to the problems already caused by the lack of such a procedure must be packaged with that amendment. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [April 2, 2019, 1:51pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/75 "2019-04-02T13:51:32Z")
The Supreme Court also technically has no power in and of itself to enforce its judicial decisions. Once or if it gets packed to the point that it becomes regarded as a farce and obvious political weapon, numerous state or local governments would start to flout it - especially if other branches of government that are supposed to enforce SCOTUS rule, decide not to. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [April 2, 2019, 4:02pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/76 "2019-04-02T16:02:24Z")
I am astounded by OP. The Supreme Court is already a laughing-stock; it has been packed with utter scumbags from the right wing. It has no honor left to preserve. Yet, OP thinks that to appoint honorable judges to this desecrated body would dishonor it? 😕 Yes, if the evil scumbags regain power they will do their utmost to restore control to the Kleptocrats, Haters, and Liars. To gain control they will use voter suppression, gerrymandering, and piles of illicit money — techniques which have been bestowed upon them by the present scumbag Court. Returning the Court to honest good-spirited judges is an important first step in reversing such anti-democratic measures. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [April 2, 2019, 5:00pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/77 "2019-04-02T17:00:57Z")
> [@septimus](#): > > I am astounded by OP. The Supreme Court is already a laughing-stock; it has been packed with utter scumbags from the right wing. It has no honor left to preserve. Yet, OP thinks that to appoint honorable judges to this desecrated body would dishonor it? 😕 > > Yes, if the evil scumbags regain power they will do their utmost to restore control to the Kleptocrats, Haters, and Liars. To gain control they will use voter suppression, gerrymandering, and piles of illicit money — techniques which have been bestowed upon them by the present scumbag Court. Returning the Court to honest good-spirited judges is an important first step in reversing such anti-democratic measures. It’s \*\*\*how \*\*\*you appoint judges that matters. Otherwise, by this the-ends-justify-the-means logic, “How can you object to us putting a good and honorable president in the White House by underhanded and dodgy methods? Putting him/her there will restore honor and dignity to the presidency.” ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 2, 2019, 5:22pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/78 "2019-04-02T17:22:10Z")
What do people think of the idea of expanding the Court to ten political appointments (adding one seat), and then requiring 5 additional seats to be filled by the consensus of the 10 political appointees? This is the idea Pete Buttigieg is supporting. I like it. It has the virtue of defusing somewhat the politicization of appointments while also not being obviously to the benefit of whatever party succeeds in creating it. A bigger court also has other benefits. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [April 2, 2019, 5:28pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/79 "2019-04-02T17:28:24Z")
> [@Richard\_Parker](#): > > What do people think of the idea of expanding the Court to ten political appointments (adding one seat), and then requiring 5 additional seats to be filled by the consensus of the 10 political appointees? > > This is the idea Pete Buttigieg is supporting. I like it. It has the virtue of defusing somewhat the politicization of appointments while also not being obviously to the benefit of whatever party succeeds in creating it. A bigger court also has other benefits. So President Trump nominates ACB and then her and the current court select five additional justices? You said “consensus”. Does that mean the 10 justices have to unanimously approve of the new member? What happens in the quite-likely scenario that they don’t reach a consensus? Do those seats sit vacant and the existing 10 members rule on cases? Or is it a majority of the 10-member “political appointees” that choose the remaining 5, in which case I would hope and expect that the 5 would be rather conservative in their judicial philosophy. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [April 2, 2019, 5:33pm UTC](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873/80 "2019-04-02T17:33:29Z")
Anything to help your team huh? Restoring the court’s reputation and de-politicizing it is just right out for you huh? I really hate this timeline. When did just doing the right thing and what’s best for all of America get replaced by anything goes for my team to be able to force our will on the other team. [Previous page](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873.md?page=3) [Next page](https://boards.straightdope.com/t/omnibus-supreme-court-packing-thread/831873.md?page=5)