Op-Ed: Packing the Supreme Court

By Art Da Rosa • May 4, 2021

On Thursday, April 15th, Congress launched the Judiciary Act of 2021, with the express objective of packing the Supreme Court from 9 to 13 Justices. Is it wrong? Is it unconstitutional? Is it harmful to the nation?

History of Dealing with the Court

The Constitution provide guidance on this topic.

The Judicial Act of 1789 set the number of Supreme Court Justices at six. Additionally, Constitution Article III, Section 1 of the Constitution, states that Congress is tasked with establishing one Supreme Court and the Lower Courts. Article III, Sections 2 & 3, list the specific authority and responsibilities given to the Courts.

Since the ruling of Madison v Madison, the Supreme Court has actively usurped power. In Marbury v Madison, It created for itself “Judicial Review.” Jefferson was President at this time. He affirmed that the Executive Branch is an independent branch of the government, just like the Judicial Branch. As such the Court has no jurisdiction over the Executive, except on the ruling of cases presented to the Courts. This stance is correct and constitutional, though much of our nation has forgotten about it.

Jefferson’s approach to rein in the Supreme Court was necessary to recognize the independent power each branch of the government has and ensure that each branch acts accordingly.

The next showdown between the Judicial Branch and the Executive Branch took place some sixty years after Jefferson.

In the pre-Civil War era, the Supreme Court was evenly split with Justices from the North and Justices from the South. The Supreme Court was viewed as the last resource on the causes sympathetic to the South. These Southern justices successfully blocked anti-slavery legislation promoted by President Lincoln.

Instead of packing the court, Lincoln recognized that the three branches of the government are equal and independent. Additionally, he did not fill vacancies in the lower courts. He was forcing a showdown. However, the anticipated showdown did not materialize. The Civil War began and the Justices from the southern states resigned.

Lincoln had specifically focused on maintaining the separation of power between the three branches of government. After his death, this structure of maintaining power remained in place.

The post-Civil War era was one of brutal persecution of the South. The Supreme Court was fully staffed. However, the six justices were bent on exacting revenge through the enforcement of the 1867 Reconstruction Act. The Justices were unscrupulously adjudicating cases.

Dr. Scott Bradley pointed out that Article III, Section 3, Clause 2 reads:

“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.”

For some time, the Court had been expanding its power through their ruling or dicta. The Congress is tasked to monitor the cases received by the Supreme Court. With the Court usurpation, the role of the Congress expanded proportionally.

Noticing the injustice of the Supreme Court, the Legislature enacted laws that limited the type of cases the Court could hear at that time. Now, they were in accordance with Article III, Section 3, Clause 2.

Packing the Court

We do have precedence around the idea of court-packing. Joe Biden and the Pelosi Congress are not the first ones to attempt to pack the court. Franklin D. Roosevelt was the principal author of the New Deal. Three of his major pieces of legislation were blocked by the Supreme Court. He was furious. He floated a proposal to pack the Court with individuals who would go along with his wishes. After that, the Court’s behavior was more compliant with the President of the United States, for a while.

FDR increased the number of justices from six to nine. Doing so, he encroached into the Judicial Branch with the full intent of ignoring the Constitution and collapsing the principle of Separation of Power. The fact that the Democrats want to repeat what FDR did is the best proof that politicizing the Supreme Court will not work in the long run.

Each branch of the federal government is, and should remain, independent. Separation of Power means that each branch can make its ruling, without regard to the others. Packing the court goes against American principles. While it may be constitutional, it is certainly immoral.

Rather than packing the court, President Biden and the Pelosi Congress should recognize the power granted to them and use them properly. And not encroach into the power of an independent judiciary. Instead of trying to rein the court, they should propose laws, present them for debate and discuss them with the American people. They should abandon the misguided attempt to grab power by packing the court.

Art da Rosa
Inkom, ID