Can Congress “Pack” the Supreme Court? Part 2

This exclusive report was provided to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson, Ret.)

Erwin Chemerinsky cheers on the discredited idea of “court packing” in the Los Angeles Times; “One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.”

Since 1869, the United States Supreme Court has consisted of 9 judges. “Congress can shape the size of the Court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new Justices. (After Ulysses Grant was elected President in 1868, the number was bumped back up to nine, where it has remained ever since.)”

“The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a Court that was striking down much of his New Deal legislation. After his landslide re-election in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15…(d)espite his popularity, and the overwhelming control of the Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice-president, John Garner, fought it. The Democratic leader in the Senate rejected it….(t)he proposal died in Congress before a vote was taken.”

Unfortunately, unlike FDR, a President Biden would not be opposed by a Vice President Harris in anything, least of all a scheme to pack the Supreme Court with new progressive judges, nominated to counterbalance the conservatives who would be in the majority were Trump’s nominee to be approved by Congress. This leftist dream scenario is entirely possible.

In response, Congressman Doug Collins (R-Ga) has plans to introduce “a constitutional amendment to prohibit a change to the size to the Supreme Court until 10 years after enactment of any legislation that would alter the number of seats on the high court.” However, as noted by Fox News, “(t)here’s a high bar to passing an amendment: In order to pass, a constitutional amendment must receive approval from two-thirds of the House and Senate, as well as ratification from three-fourths of all states, or 38 out of 50.”

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As a more practical matter, were a Democratic President to carry through with any scheme to increase the number of Supreme Court Justices, there is a good chance that any such plan would come back to eventually haunt the left.

All politics is cyclical. Today we have a Republican President – more likely than not, that President will be followed by a Democrat, who will then be followed by a Republican. Jimmy Carter, a Democrat, was followed by Ronald Reagan. After George HW Bush (who, it has been argued, was an extension of the Reagan presidency) came Bill Clinton, another Democrat, who was followed by George W. Bush. After Bush came Barak Obama, who has been followed by Donald Trump.

During Obama’s presidency, “Senate Democrats — then in the majority — triggered the nuclear option for the first time…Democrats led by Senate Majority Leader Harry Reid of Nevada, changed the rules so that lower court and Cabinet nominees could be confirmed with a simple majority, rather than the typical 60-vote threshold.”

At the time, Democrats believed they could rely upon a “permanent majority” – a nonsensical notion, but one that lead the then-Democratic majority to make a rules change that has been used against them repeatedly during the Trump Administration. “(T)he total number of (federal) judges confirmed under (the Trump) administration (is) 216, which represents nearly one-fourth of all active (federal) judgeships.”

All of these judges have been approved by simple majority vote.

Thus, were a Democratic Administration to “pack” the Court in 2021, in 2032, a Republican Administration could easily either appoint more Supreme Court judges, or scale back the number then-sitting. Significant damage will have been done, no doubt. But the cyclical nature of our system will endure.

Photo: Pixabay

Quick Analysis

Alienating Allies

President Biden has called two key U.S. allies, India and Japan, “xenophobic.” As noted in a Hill report “Biden grouped Japan and India alongside China and Russia as ‘xenophobic countries,’ claiming being less open to immigrants has caused the countries’ economies to struggle since the COVID-19 pandemic.” The comment comes at a time when both of those nations are essential to American goals in the Indo-Pacific, including countering China’s massive arms buildup, North Korea’s growing nuclear prowess, and Russia’s increased presence in the region. China now has a larger fleet than the United States, and has powerful assistance from Russia. The U.S. State Department warns that “Across much of the Indo-Pacific region, the Chinese Communist Party (CCP) is using military and economic coercion to bully its neighbors, advance unlawful maritime claims, threaten maritime shipping lanes, and destabilize territory along the periphery of the People’s Republic of China (PRC). This predatory conduct increases the risk of miscalculation and conflict.” Alexey Muraviev, writing for the Asia Times notes that “China is not the only potentially adversarial maritime power that is flexing its muscles in the Indo-Pacific region. Russia is becoming a cause for concern, too, even though the 2023 strategic review did not mention it….Between 2022 and October 2023, for instance, it commissioned eight new warships and auxiliaries, including four nuclear-powered and conventional submarines. On December 11, two new nuclear-powered submarines formally joined the fleet, in addition to the conventional RFS Mozhaisk submarine, which entered service last month.” Biden making a comment that directly and clearly harms both U.S. interests and those of key allies is hardly surprising, as evidenced by his bizarre actions regarding Israel. The Department of Defense states that “ Japan is growing and taking leadership roles that not only benefit people in the Indo-Pacific, but the global community, said Grace Park, the director for Japan policy at the Defense Department’s Indo-Pacific Security Affairs Office said… Japan, the fourth largest economy in the world, has taken a greater security role in the past decade, Park said. Japanese leaders are reorganizing the self-defense forces in the country, fielding new military capabilities, increasing the amount spent on self-defense and more. “I believe that the United States has gained a lot from this alliance relationship,” she said. It will soon play an even more significant role. The Department of Defense reports that “The U.S., Australia and the United Kingdom, members of the AUKUS partnership, are considering cooperation with Japan on advanced capabilities projects. …Japan was considered because of its strengths and its close defense partnership with all three countries, said Deputy Pentagon Press Secretary Sabrina Singh, who held a press conference today. Japan is playing a larger role in other essential American alliances, as well. As reported in the American Military News, “The Philippines and the United States are considering the expansion of their annual “Balikatan” (shoulder-to-shoulder) military exercises carried out under the Mutual Defense Treaty between the Philippines and the United States, to include Japan. As this column has previously reported, India’s population, military strength, and strategic geographical location render it one of the world’s most important nations. The Pentagon notes that “Over the past decade, the U.S.-India defense relationship has become indispensable in promoting peace, prosperity and stability in the Asia Pacific and Indian Ocean region.” Since the start of his Administration, President Biden has consistently engaged in policies and actions that have emboldened America’s adversaries and alienating and worried allies. The consistency of his inexplicable course of action is now clear, and the U.S. citizenry deserves an immediate explanation. The highly partisan U.S. media has, until the current holdup of aid to Israel, turned a blind eye to Biden’s destructive foreign policies, allowing him to progress from one disaster to another. Illustration: Pixabay