Even under the most optimistic electoral scenarios for ’08, it appears that Democrats will be stuck with an extremely conservative Supreme Court, which will likely invalidate key reforms passed by the Congress. It could be similar in some respects to the frustration FDR experienced when hidebound SCOTUS reactionaries gutted a number of his New Deal reforms.
It’s actually worse in some respects today than the obstruction FDR confronted (read his “fireside chat” on the topic here). Six of nine SCOTUS justices FDR faced were over the age of 70. His efforts to “pack the court” failed, but, before too long the elderly SCOTUS justices were retired and Roosevelt appointed more liberal justices.
Today, however, the conservative majority is much younger, and will likely be around for decades. Some of them may become more moderate over time, but it would be a mistake to count on it.
Emily Bazelon’s SLATE article “Throw Restraint to the Wind” discusses the possibilities for changing the prevailing SCOTUS philosophy, but the article doesn’t really deal directly with the promise suggested by her subtitle: “And other ways for the legal left to rein in the Roberts Court.” Bazelon points out that the upcoming American Constitutional Society and the Yearly Kos Convention will address the future of the Supreme Court and she kicks around the idea circulating among some liberal scholars and legal writers that progressives should now take back the philosophy of ‘legal restraint’ and make it their own. In any case it’s hard to imagine Roberts, Alito, Scalia, Thomas and Kennedy being much influenced by such a trend.
Bazelon also notes that even the “liberals” on today’s court are more like moderates. As Cass Sunstein, quoted by Bazelon put it “Something has gone badly wrong if the Court has a strong right-wing without any real left.” It is a High Court without liberal firebrands like Douglas, Brennan or Marshall.
Supreme Court Justices can be impeached by Congress, but none have ever been convicted and removed.
All of which leads one to wonder whether enlarging the court with just two more justices to restore some balance might be an idea that could fly, should Dems win the presidency and a filibuster-proof majority of congress. As Jean Edward Smith, author of “FDR,” points out in a NYT op-ed today, there is no constitutional provision for any precise number number of Supreme Court justices — It’s up to the Congress. Nothing particularly sacred about the number 9 — Congress has enacted laws establishing 5, 6, 7 and 10 Supreme Court justices in U.S. history. As FDR explained in his aforementioned ‘fireside chat,’
The number of justices has been changed several times before, in the administrations of John Adams and Thomas Jefferson – both of them signers of the Declaration of Independence – in the administrations of Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant.
Of course there would be much whining, weeping and gnashing of teeth on the right and some opposition from ossified traditionalists. There would be a lot of belly-aching about “packing the court.” But if they want to invoke memory of FDR, a Democrat who knew how to win a war, save a devasted economy and provide hope for the nation and world, bring it on. Yes, it would take a huge fight to get it done. But, if the alternative is getting progressive legislation stuffed by Roberts and Co. time and again, where’s the downside?
As a Democrat, I’m intrigued by the idea of increasing the size of the Court to add justices more in line with my views but as a citizen, I’m much more sceptical.
The argument made in the NYT piece is that the Court has gotten too political but their solution is to infuse it with more politics. That isn’t the most compelling line of reasoning.
If the issue is really that the current members of the Supreme Court are incapable of putting their partisan feelings aside and making objective rulings then we should add objective justices, not liberal ones. Adding two new partisans to a group of partisans just creates a larger group of partisans, not a a better Supreme Court.
Another avenue a filibuster-proof Congress might pursue is impeachment, namely for offenses of the justices in the majority in Gore v. Bush.
Thomas and Scalia had clear conflicts of interest in Gore and should have recused themselves. Furthermore, the majority decision to usurp the powers reserved to the State of Florida and the authority of its Supreme Court in determining the actual ballot count in the 2000 election amounted to electoral fraud and obstruction of democracy. And in the clarity of hindsight, those justices enabled all the crimes and attocities committed by the Bush Administration, at least those of its first term, including the Iraq War and blatantly flauting the FISA.
Congress should draw up articles of impeachment against those justices remaining from that majority–an action not without precedent. And while Roberts would remain as Chief in such a scenario, he would find himself either in a far-right wing minority with Ailito, or would move toward a more centrist position.