There was a lot of talk about Harris, with a Democratic Senate behind her, expanding the Court to 13 Justices, based on the 9 federal circuits (now 13) being assigned to each of the 9 Justices. I don’t know how realistic this ever was as a political plan, but it was certainly discussed as something she might try to accomplish.
But now it seems to me a brilliant plan for the second Trump Administration to test out. Certainly his chances of getting 50 Senators (plus his VP) to support this ambitious plan are better than her chances ever were, both because he has more Senators than she would have had, and because GOP Senators are likelier to disregard their own doubts (if they have any) about falling into line supporting Trump’s more extreme proposals.
And if they do pass a law adding 4 new justices, can any Democrat now claim this is illegal court-packing, when they spoke about trying it themselves? If they get it passed, Trump will easily get confirmed four wet-behind-the ears fanatically MAGA lawyers who will be able to serve on the court for fifty or seventy years, giving the court (with eventual young replacements for Thomas, Alito, and Roberts) a 10-3 majority (at least) for the remainder of our lifetimes.
Is there a reason this is unrealistic? Politically, that is. I’m sure Trump’s team will see it as a delicious irony (even if unsuccessful, Democrats opposing it will be shown to be hypocrites of the first order) and a powerful tool to cement their regressive hold on the U.S. for the rest of the 21st Century.
My kid brother (I’ll need to stop that—he’s pushing 70) gave me a decent argument but I don’t find it comforting: the next Democratic President after Trump can follow his lead and create 20 or 30 new Justices who’ll undo the damage of the Trump years. I don’t think he’s right, mainly because he’s talking many years of profound damage and because I don’t expect to live long enough to see the next Democratic President—perhaps no one will.
He already has a lock on this SCOTUS, why add more unnecessary people to payola off? Actually, I take that back, no longer a need to call it payola anymore, they can just come out and admit that they are bought and paid for.
By doing so, and including all the added staff, he would be increasing the cost of government. Something he said he was against. He wants to reduce government to as few people as possible, not grow it. Also, as stated above, how much more of a majority does a president really need?
I imagine if any such structural change were made to the SCOTUS, it wouldn’t get through Congress unless it was delayed for at least a couple of Presidential terms down the line. There are still some sane heads in both houses wearing red.
As long as the Supreme Court does Trump’s bidding he has no need to expand it. If, for some reason, they started making rulings he does not like I have no doubt he’d add more to the court until it is compliant again.
Of course. But I can’t think of a good reason that the GOP wouldn’t take this golden opportunity to cement their hold on jurisprudence for the next century. Even if they don’t accomplish that, simply trying would bait some Dems to oppose it and would give them a chance to point out the utter hypocrisy of opposing it. It’s a total win-win-win for them and I can’t think of a reason they wouldn’t at least make a show of it.
That would make sense if they all still rode circuit.
No. Congress controls the number of justices. This was tested under Andrew Johnson when, in order to deny him any appointments, they reduced the number of Justices by one every time one died - overriding his veto. Once he left office, they immediately raised the number of justices back up to 9.
Roosevelt tried it and it failed miserably. If the court gets packed to 13 (one per circuit) then the move the Dems should make if they take control in 2028 is to create a Constitutional Amendment that limits Justices to a term such that
a term is up every 2 years
an appointment for a dead or retired or impeached/convicted justice finishes out their term
the term applies to current justices with their term expiration in order of years on the court starting 2029
the Senate must hold an up/down vote on a SC appointment within 30 days
Creating additional seats on the SC just requires a majority in the House, 60 votes in the Senate (or 50+VP tie breaker if the filibuster is nuked) and the President’s signature. A constitutional amendment requires 2/3 of each chamber of Congress and ratification by 3/4 of the states. Democrats will never achieve that threshold on an amendment to undo conservative court packing.
If both sides keep increasing the size of the Supreme Court everytime they control the White House and Congress it’s very quickly going to become unmanageable unless it starts sitting in panels.
What happened still gets argued. Some historians claim that the Court was already moving away from its earlier extreme right views by the time Roosevelt made his threats. Others do agree that the Court believed Roosevelt was serious enough to make them shift decisions.
Roosevelt proposed the Judicial Procedures Reform Bill of 1937 just after his inauguration for his second term. Justice Owen Roberts provided the fifth vote okaying a state minimum wage shortly after. Aha! Except that the case and decision probably had already been determined internally.
In any case, the Senate had no interest in proceeding on the bill and it sat in committee forever. In August, Roosevelt named Hugo Back to the court, at a time a great liberal. And then four other positions opened up before the end of his term. One moderately left-wing court with no extra seats needed. And then four more appointments in his third term. (One of them replaced a previous Roosevelt nominee. Owen Roberts outlived him.) Eight of nine ain’t bad, though. Such an outcome would seem to be impossible today.
Since the Democrats did not even attempt at any level other than chatter to increase the size of the court, no reasonable accusation of hypocrisy can be thrown at them. But why worry about that? Republicans will do exactly what they screamed at Democrats for doing and nobody will pay any attention to their hypocrisy. Why have we allowed hypocrisy to affect one side and not the other?
There’s no reason for the GOP senate not to try. If it requires a 60-vote majority, it will fail, but then they can point their fingers at Dem Senators who spoke out in favor of such a thing when they seemed to be in power, or possibly so. What fun!