IMMEDIATE RELEASE 17 September 2021
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
Expanding is not packing the Supreme Court
By Douglas Cohn and Eleanor Clift
WASHINGTON — The U.S. Supreme Court has a checkered past, filled with good decisions, bad decisions, and incomprehensible decisions which is how Associate Justice Stephen Breyer described to me the Court’s decision that decided the 2000 presidential election.
The Founding Fathers’ goal had been to establish an independent, impartial supreme judiciary, but their well-laid plans went awry as political philosophy rather than jurisprudence became the criteria for presidential nominations of judges.
Since 2000 the middle ground – that hallowed ground where judges belong – has steadily moved rightward from Justice Sandra Day O’Connor to Justice Anthony Kennedy to today’s Chief Justice John Roberts, who sided with the Court’s three liberals in opposition to the five conservatives’ refusal to stay the recent Texas abortion law.
So, we do not look upon the Supreme Court as the domain of nine impartial justices, but rather as one consisting of five conservatives, three liberals, and a right-leaning centrist. This is not as it should be, and there is a solution.
In 1787, James Madison, wrote Federalist Paper No. 10 in support of the new Constitution, and although he was referring to the advantages a large republic has in overcoming the passions of factions, his words are equally and unintentionally applicable to the makeup of the Supreme Court: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”
It is in this vein that a solution to Supreme Court factional biases may be found. The Court should not be packed; it should be expanded to a number that increases diversity and decreases factional coalitions. If the nine member-Court is expanded to 23 members, diversity can be assured through selection and actuarial means.
Until the 23 number is reached, no president (or successor in an unexpired term) should be allowed to successfully nominate more than two justices during a four-year term in addition to filling any vacancies. And per the Constitution, a nominee must be confirmed by the Senate. However, should the Senate refuse to consider a nomination (as in the case of Pres. Barack Obama’s nomination of Merrick Garland) or reject all nominations of a sitting president, only a Constitutional amendment could remedy this. The same is true for establishing age limits. Neither amendment would be beyond the realm of the possible.
A 23-member Court would follow Madison’s advice by extending the sphere through numbers initially increased over 24 years and up to then and thereafter through retirements, deaths, and possible expulsions. Such turnovers would be accompanied by a Court comprised of more appointments by more presidents. And, finally, normal human interaction between more justices would undoubtedly have a moderating influence on them.
This is a formula for expanding, not packing the Court
Douglas Cohn’s latest books are The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
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END WASHINGTON MERRY-GO-ROUND
is not packing the Supreme Court
IMMEDIATE RELEASE 17 September 2021