What Next for the Supreme Court?
By Martin Burns
“Steve Bannon once famously said that, in politics, “We [the Right] go for the head wound, and your side has pillow fights.” Quoted in “How Democrats Could Pack the Supreme Court in 2021,” Jeff Greenfield, Politico, September 19, 2020.
It seems quite logical to ask following the death of Supreme Court Justice Ruth Bader Ginsburg: Why are there nine justices on the Supreme Court? One might assume that it is written in the Constitution? The answer is no it is not written into the Constitution that the Court have nine justices. It just sort of happened that way.
The Constitution grants Congress the power to determine how many justices should sit on the court. Over the years, the number of justices have varied from five to ten. There is nothing sacrosanct about the number nine.
Furthermore, Congress and the president have quarreled in the past about the number of justices on the court. In 1869, Congress passed legislation decreasing the number of justices to seven. At that time, Congress was trying to deny President Andrew Johnson the ability to appoint justices. Eventually, the number ended up at nine.
The most famous example of a political attempt to change the number of justices was in 1937 when flush from his landslide reelection victory in 1936 Franklin Roosevelt attempted to alter the Court by allowing the president to appoint a new justice for every justice over age 70.
Roosevelt’s packing plan, motivated by the Court’s blocking of several New Deal initiatives, is widely regarded as his biggest political measure. The court plan went down to defeat as Southern Democrats joined with Republicans to block the plan.
While the court packing plan was defeated by Congress, before the legislation came up for a vote, the Court upheld as constitutional the National Labor Relations Act and the Social Security Act. Would this have happened had Roosevelt not tried to expand the court? We will never know for sure. However, I would agree with the fictional Irish bartender Mr. Dooley who is reported to have remarked: “the Supreme Court follows the election returns.”
Roosevelt may have not been able to expand the Court, but his move did preserve both Social Security and the National Labor Relations Act.
The current situation compels the Democrats to move to expand the Court to preserve both Roe vs Wade and the Affordable Care Act (ACA).
Everyone more or less knows that Roe is on the line with the next justice. Less well-know is the fate of the ACA. As the Washington Post points out: “The Supreme Court is scheduled to hear oral arguments Nov. 10, a week after Election Day, in an ACA case with sharp partisan contours. It is based on a lawsuit that was initiated by a coalition of Republican state attorneys general and is supported by Trump’s Justice Department. Another coalition of mostly Democratic attorneys general is trying to uphold the law.”
Democrats, especially those in the Senate, can gamble that they can somehow stop Majority Leader McConnell and President Trump from jamming through a replacement for Justice Ginsburg or they can be bold and aggressive and say: “Yes, we will try to stop this nominee but regardless of that outcome we will move aggressively to expand the Court the next time we have a Democratic president and Senate majority to preserve the ACA and its protection for those with pre-existing conditions (in other words all of us).”
There are no easy choices for the Democrats. Any move to expand the Court to protect the ACA and preserve Roe vs. Wade will be meet with howls and screams by some that the Democrats are destroying the Supreme Court and tearing up the Constitution. It would, of course, be better if Democrats and Republicans could reach across the aisle and come up with a bipartisan solution. However, is his a reasonable possibility? Given McConnell’s refusal to allow the Senate to even vote on the nomination of Merrick Garland this is not a reasonable proposition.
Expanding the Court is not something that will be easy by any means. It will mean a bitter political fight that we have never seen before. However, the alternative is turning back the clock on Roe vs. Wade and the ACA. When viewed this way, the Democrats really have no choice. Now, who is going to break the news to Senator Schumer?
