Joe Scarborough, the host of “Morning Joe” and a former Republican Congressman, wrote this provocative article for The Washington Post, where he is a columnist.
Deep suspicion surrounded the new president and his plans for the Supreme Court. He had been attacking the high court’s rulings for years and even groused publicly nine months after being sworn in that “the country generally has outgrown our present judicial system.” His future secretary of war, Edwin Stanton, bitterly complained to his predecessor that the new president was certain to “affect the future doctrines of the Court.”
Abraham Lincoln confirmed his opponents’ worst suspicions when he moved against the Supreme Court by signing the Judiciary Act of 1862, adding a 10th justice to the court. Following his assassination, Republicans in Congress reduced that number to seven in an effort to thwart Lincoln’s Democratic successor. Republicans then added two justices after winning back the White House in 1869.
Thanks in part to these maneuvers, the party of Lincoln would control the highest court in the land for the remainder of the 19th century and for the first 40 years of the next century. By 1937, Franklin D. Roosevelt had had enough, but his effort to expand the court was rebuffed by members of his own party. Still, a president working with Congress to change the Supreme Court’s size has a rich historical tradition that is both constitutionally protected and backed by 231 years of precedent. If Joe Biden were to propose such a change, constitutional originalists would surely be his most aggressive supporters.
As Amy Coney Barrett said in Senate testimony this week, the Constitution has “the meaning that it had at the time people ratified it.” Even before every state ratified America’s founding charter, George Washington signed a bill that placed just six justices on the Supreme Court. The second president, John Adams, reduced that number to five. Thomas Jefferson increased that number to seven. And the man who inspired the term “Jacksonian Democracy” added two more justices in 1837.
Given such a powerful legacy, originalists, Republican politicians and right-wing bloggers would never dare suggest that adjusting the Supreme Court’s size was anything other than constitutional and consistent with the republic’s oldest traditions. To do so would condemn as un-American the Father of our Country, the author of the Declaration of Independence and the first president to live in the White House.
How would Barrett respond to such slander? These men were, after all, present at the creation of our constitutional republic. The founding document “doesn’t change over time,” Barrett exclaimed, “and it isn’t up to me to update or infuse my own policy views into it.” By that standard and the actions of the Founding Fathers, there is no good-faith constitutional argument against the future addition of Supreme Court justices.
Those in the party of Trump will thus be forced to present themselves as the protectors of America’s political norms in opposing such an act. This approach would be laughable. After all, Republicans continue supporting a president who has said Article II gives him “the right to do whatever I want as president”; questioned the legitimacy of federal judges; used the Stalinist smear “enemy of the people” against the free press; refused to condemn white supremacists; told “Second Amendment people” they could stop Hillary Clinton from appointing judges; sided with an ex-KGB agent over America’s intelligence community; attacked military leaders as “losers”; undermined America’s democratic process by proclaiming it to be “rigged”; and refused to guarantee the peaceful transfer of power. Beyond Trump’s multitude of sins against democracy, Majority Leader Mitch McConnell would then have to account for his own trashing of Senate traditions before positing himself as the protector of political norms.
The American people will never buy it. By their own actions, these radical Republicans have no standing to protest future changes to the court’s makeup. They have made their own bed. Now it is time for them to sleep in it.
I’ve never heard anyone, “originalist” or otherwise, question Congress’s authority to change the number of seats on the Supreme Court. This is purely a political question.
The Constitution does not say how many seats there should be on the Supreme Court.
It also doesn’t require the existence of appellate or district courts. Congress could eliminate all of them.
I think they should have 13 Justices but only 10 seats.
If they wanted a seat, they would have to fight for it.
If Brett K wanted a seat, he would have to be sober.
Although im not sure if that would be a good or bad thing.
Then again, being drunk could mean more aggression and greater likelihood to get a seat.
I suppose it depends on the degree of inebriation.
But blackout drunk would probably mean no seat.
Then again, blackout drunk would not require a seat.
According to some I have read, we not only need to expand the supreme court, but we are in need of creation of new district courts to handle the expansion of population.
My take on the matter comes from a lifetime of watching the fights over justices. I was just a little boy when the Republicans raised holy hell when LBJ nominated Abe Fortas to the high bench. My family, a combination of isolationist republicans left over from the Nye hearings after WWI and typical southern democrats, led me to believe that this was sort of out of the ordinary. When Nixon was elected, the Democrats went after Clement Haynsworth. Robert Bork received harsh treatment. Then the thing about Merrick Garland happened and now the Barrett nomination.
What all this seems to say to me is that the court has become too important and reflects too dramatically the divide we now see in American politics. What we need is a larger Supreme Court coupled with a process that pushes the court farter away from politics as it is now practiced. We need a constitutional amendment that will set the court at a number level that will be high enough so that one justice rarely tips the scale. In that amendment we could set up some agreed-upon qualifications for potential occupants of this august body, thus keeping political appointees out of the mix for consideration.
I do not expect this to happen. Both parties demonstrated their desire for conflict when no one stepped up after the Gore-Bush fiasco to create electoral tie-breaker legislation that would arbitrate races too close to call with simple rules to keep one side or the other from feeling cheated. It seems to me both sides see feeling cheated as a thing they want.
So don’t hold your breath, no matter who is elected.
Here’s a good explanation of why we need to change the Court. Our rights of representation are not just perverted by the Electoral College. They will be eliminated by the Court very soon:
https://slate.com/news-and-politics/2020/10/supreme-court-pennsylvania-election-late-ballots.html
All of these proposed changes hinge on the Democrats winning the House, Senate and White House. If the Refascisticons still control the Senate, they will do to Biden what they did to Obama. Obstruct, obstruct, obstruct and then blame all the delays, inaction and conflict on the Democrats. There should be term limits for the SCOTUS as well. If Biden wins, he will have so much on his plate just trying to undo all the damage that Trump has wrought that expanding the SCOTUS may not be the first thing on his agenda. I think he has denied that he wants to expand the SCOTUS?
If the Justices only served the year terms, for example, it would probably be much better. With all the knowledgeable legal minds in the country, it actually makes no sense to restrict the court to just a few individuals with life terms.
Ten year terms
Also might require every Senate Dem to vote for those changes. Manchen, for one, probably wouldn’t.
“Now Greg Sargent at the Plum Line is sounding the alarm over a revelation in “The New New Deal” by Grunwald. Vice President Joe Biden told the author that during the transition, “seven different Republican Senators” told him that “McConnell had demanded unified resistance.” This was after the 2008 election but before Obama and Biden took office.
“The way it was characterized to me was: `For the next two years, we can’t let you succeed in anything. That’s our ticket to coming back,’ ” Biden says.
Never mind the nation was falling off the fiscal cliff. Never mind the global economic system was hanging in the balance. Never mind we were on the verge of another Great Depression. When the nation needed single-minded focus, the Republican political establishment put power over the national interest”.
Kentuckian McConnell couldn’t stand that a black man had won the Presidency. We all know what happened next: Republicans won the Senate in 2010, McConnell got his gear-jamming opportunity to block everything Obama tried to do: rebuild the infrastructure, for example. providing millions of jobs during the recession Obama inherited.
Fast forward: As a attempt to convince Biden he won’t need to pack the court, I look for Obamacare to be continued by the new Court on November 10, I believe it is.
Retaliation for everything McConnell, Trump, Barr, Graham have been authors to will be tempting, but too time demanding at a time Biden needs to restore America to its place of respect it had before Trump pushed another world leader out of the way to get his golden locks on camera.
Domestic demands, too, are screaming for attention. So, keep an eye on the court. If it
makes decisions contrary to democracy’s best interest, consider packing it.
This is a manufactured controversy,
It should never have been made into a real issue. The real issue is that Republicans held up hundreds of federal court nominations — including a nomination for a Supreme Court Justice – denying the right of a president to even have his nominations considered. And then they rushed through an underqualified sycophant Trump Supreme Court Justice who had already signalled that Trump’s orders were more important than science when she didn’t wear a mask to please Trump.
It is a failure of our media that Judge Barrett’s nomination was normalized while it is the idea of increasing the size of the Supreme Court — which is just an idea!! — is being portrayed as one of the most pressing issues in the country.
The media, as usual, got played, and forced the Democrats into playing along.
Media carrying freight for rich Republicans began with Jimmy Carter who was America’s last good president. He was made to look bad by media.
Finishing Stu Eizenstat’s bio of Carter this evening. Exceptionally informative. More later.
Senate Republicans advanced another Trump judge pick for a federal position- a person with paltry credentials who is 33 years old. She attended Lakeland Christian School and Covenant College. No doubt she will bring to the job, the arrogance of the religious who are superior having been blessed by God.
https://www.huffpost.com/entry/trump-judicial-nominee-unqualified-kathryn-kimball-mizelle_n_5f91aa90c5b61c185f48092d
Nice work if you can get it.
yep
as you know, Greg, nothin’ to worry about from theocracy.