“The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”
– Chief Justice nominee John Roberts (2005)
The members of the US Supreme Court serve life terms for a reason. Once on the court, they no longer have to give a hoot what the people think.
Freed from all those seedy influences that seem to dominate the lives of our representatives in Washington, the Supreme Court is meant to serve as the stabilizing force of our entire Constitutional system. Justices need not pretend to be anything more than the final arbiters of our law and its foundation, a tempering body that looks beyond the zeal of the political moment, no longer even inclined to comb their hair in order to secure a single vote; a small group so sheltered from the fleeting passions of the day that they are able to see unclouded the long consequences of their judgments.
If only this were so. The controversial Gorsuch and Kavanaugh confirmations are part of a recent trend that threatens the objectivity and hence the credibility of the court itself; of 28 justices confirmed by the Senate since the 1950s, only four have ascended with fewer than sixty-three votes. All four are serving today.
Age Senate Confirmation Vote
Clarence Thomas 69 52 to 48
Samuel Alito 68 58 to 42
Neil Gorsuch 51 54 to 45
Brett Kavanaugh 53 50 to 48
Along with Chief Justice John Roberts (age 63), this politically charged conservative majority is poised to rule for a long time to come.
Despite the legitimate cries of foul from liberals, the current court has been constituted according to the rules. Yet, the rules begin with the Constitution. According to Article III, “The judicial Power of the United States shall be vested in one Supreme Court… as the Congress may from time to time ordain and establish.” [italics added]
When the court ceases being what the court was intended to be, it is the Congress which has the power, “from time to time,” to intervene. To wit, there is no mention in the Constitution of the number of justices who shall sit upon the Supreme Court.
Let history be our guide. In 1789, Congress originally set the number of justices at six, changed it to seven in 1807 and then nine in 1837. During the Civil War, the number was set at ten by a Congress that did not include representatives from the eleven states of the Confederacy; understandable, considering these states were in active political and military rebellion against the United States.
After President Lincoln’s assassination in 1865, the Congress reduced the number of justices to seven in order to limit President Andrew Johnson’s influence over the court.
It wasn’t until the Judiciary Act of 1869 that the number of justices was set at nine, where it has remained ever since.
While nine has become fashionable, the fact remains: the number of justices is a matter for the law-making process. Under the right circumstances, the politically manifested court we have today could be returned to something the framers of the Constitution envisioned.
Attempting to alter the court is not to be taken lightly. The most daring example arose in the 1930s while the country was in the thralls of the Great Depression. After the court struck down many of President Roosevelt’s most sweeping New Deal programs, FDR attempted to increase the number to 15.
His argument was that aging members of the court were too feeble. He suggested that, for each justice over the age of seventy, another justice would be appointed with the goal of helping the old guys shuffle all those papers. FDR had just been re-elected in a landslide and his Democrats controlled the Senate with a 74 to 18 majority. With two of three branches firmly in his power, Roosevelt’s court-packing plan was an effort to bring the judiciary under his control, as well.
The question was not so much whether a 15-justice court is Constitutional, for if the Judicial Procedures Reform Bill of 1937 had passed, it certainly was. The question before the entire country was whether President Roosevelt was becoming King Franklin I.
Members of FDR’s own party recognized the threat posed by Roosevelt’s court-packing plan and refused to go along. Loading the court with FDR liberals was clearly a political act meant to achieve political goals and, in the end, wiser heads prevailed.
If wiser heads are to prevail today, it must be seen that the Supreme Court’s conservative turn has been achieved through political machinations that defy the purpose of the court as imagined by the framers. As it turns out, the one who seems to understand this as much as anyone is Chief Justice John Roberts. He has demonstrated in the past his desire to maintain the court’s independence and its commitment to stare decisis, a respect for precedent. If he fails, the Congress has the power to alter the long-standing precedent of a nine-member court.
Since an unsuccessful attempt has been made before, it is important to remember that FDR was clearly attempting to politicize the court in 1937. Today, any court-packing would be carried out with the goal of de-politicizing the court. Adding four justices with, say, a requirement of 75 Senators needed for confirmation, would give the current divided court the centrist foundation it was always intended to have.
Recent events illustrate both the worst and the best of our Constitution. The bad news is that the system of checks and balances that strives to maintain a separation of powers can be undone. The good news is that, if the people choose wisely—and the moment for the choosing is now upon us once again—those in power will have the wisdom and the courage to stand down the threat.
Oh…where to begin. Let’s start with the vote counts indicating concern on the left that they would lose the ability to create law through judges. Republicans seemed to vote overwhelmingly for the recent very liberal judges Sotomayer and Kagan, because although “well qualified”, they believed the President’s authority to choose his nominees comes as a result of winning this office. Since abortion became the law across all 50 states, essentially created by the supreme court’s ruling in Roe v Wade, the left has set out to defend this at any cost…with Sen. Chuck Schumer saying before the Kavanaugh hearings that he would do whatever it takes to defeat his appointment. What a shameful exhibit they put on for all to see! The now 4 left leaning justices are in virtual lockstep, while it isn’t unusual to see one of the 4 federalist leaning judges crossing over to that side when precedent law exists to justify their position. For the first time in years, conservative constitutional judges outnumber the left liberal wing of the nation’s highest court, and you guys are scared! Give it a chance….aren’t umpires supposed to follow the law created by those given that authority. When they make their own strike zones or decide one is safe when evidence shows their out, the players revolt…it’s not fair they rightfully claim. Play by the rules the legislative branch creates (you know, law), and when courts decide to take issue with this, we have a system to decide this all the way up to these 9 “supreme umpires”. You gotta have faith Jimmy….
Bravo, Bobby C. Thanks for piping in.
I believe you have touched upon the point that lefties are concerned about. Those “federalist leaning” judges you refer to that have “crossed over” on occasion include John Roberts and the recently resigned Anthony Kennedy. It is the others I am concerned about. And, as I wrote, I have confidence that Roberts’ role as Chief Justice will become the tempering force that maintains the court’s integrity. His recent defense of the judicial system after Trump’s tirade against the 9th Circuit is evidence that the Chief is willing to do just that.
Regarding Roe – and without engaging in that socially divisive debate – the court did not make abortion legal so much as it prohibited states from making laws that interfered with women’s rights; a decision perfectly consistent with the long-established practices of the court.
Finally, if by “lockstep” you mean the court’s four liberals are committed to equal justice and liberty to all, and that our nation’s history has favored certain classes of people over others, and that we have a responsibility to consider this as we move forward then, well, I say, it’s time to lace up my boots.
Peace,
Jimmy P.
Really nice finish while it is not clear how a centrist foundation is formed . . . to me, it needs elucidatio as to how this was achieved..
And just like a white male (my bro) to leave out the dynamo of the century, Supreme Court Justice of many decades, Ruth Bader Gindsburg . . . see the award winning doc “RGB”. She is 84, fell down awhile ago and broke a few ribs, when cancerous tumors were found in her lung. They removed them. Couple days later she was back in the gym pumping iron. Sound like anybody you know?
Good stuff, excellent points. The more history the merrier.
Mickey,
Thanks for joining the conversation. My thought is that adding four justices with the requirement that they would need 75 of 100 Senators for confirmation means that any presidential nomination to the high bench would need broad bipartisan support – unlike recent appointments. The result would very likely be four additional justices with no identifiable strong tendency to either the left or the right. Hence, a subsequent 13-member Supreme Court would almost always need to include members of this “centrist foundation” in order to create a majority.
I’m not sure what you meant by the reference to RBG although I couldn’t agree more that she represents the best in what America can be for all of her citizens – not unlike our mutual acquaintance, BGB.
Peace,
Jimmy P. Morgan
We need to do something different. No party should be able to politicize the Supreme Court to the extent that the voice of some of the people is always never heard. There needs to be a sway, a little bit of this and a little bit of that. That is what democracy is. One sided thinking leads to a lack of growth, creativity and opportunity. No one should always get their way and no one should always be put on the losing side. That is what creates apathy, division and loss of hope that things can change with more effort. Without “hope” we all lose. And we also learn from our mistakes…just like umpires do. Thats why they should never chose a favorite team before the game. The ump needs to make every call as truthful as possible, otherwise baseball wouldn’t be exciting and unpredictable. With the Supreme Court sometimes you win and sometimes you lose, but it should always be possible to try, try again.