Large swaths of the elected Democratic political class have been chattering, of late, about possibly trying to “pack” the U.S. Supreme Court by statutorily increasing the number of justices who comprise the tribunal. The idea is to try to staunch the perception that conservatives, via the nominations of Neil Gorsuch and Brett Kavanaugh (along with any other nominations that may arise during the rest of President Donald Trump’s presidency), might come to dominate the Court for decades. Perhaps best to try to add to the number of justices and thereby easily regain control of the Court during the presumptive future Democratic administration from 2020-2024, so the logic goes.
As the Washington Examiner reported yesterday:
When Alexandria Ocasio-Cortez proclaimed that Democrats should “pack the Supreme Court of the United States of America,” she was floating a fringe fantasy of increasing the number of justices from nine to 15 as a way of kick-starting a left-wing transformation of America.
Now, the idea has gone mainstream. …
Four 2020 candidates are following her lead and have endorsed or are open to “packing the court.” The pressure group Pack the Courts is advertising using Means of Production, a self-described pro-Marxist production firm that produced viral online ads for Ocasio-Cortez.
Linking the Democratic party’s leftist and establishment wings, Pack the Courts has teamed up with Demand Justice, a group run by Brian Fallon, a former Hillary Clinton press secretary.
The Examiner also highlights the post-Civil War history of the Court’s size:
The Supreme Court has been set at nine seats since 1869, and the last attempt at packing the court occurred in the 1937, when FDR was frustrated that the court had stymied some of his New Deal proposals. He proposed appointing a new justice for every sitting justice over 70 years old, and even the Democratic-controlled Congress at the time was opposed.
Now, Rep. Mark Green (R-TN) has proposed a constitutional amendment that would preclude such machinations by permanently fixing the size of the Court at nine justices. Conservative Review reports:
The proposal from House Freedom Caucus member Rep. Mark Green, R-Tenn., comes in response to recent talk from Democratic presidential candidates about packing the Supreme Court with extra judges if they gain control of the Oval Office in 2020.
“Schemes to ‘court pack’ thwart the Founders’ intent to create an independent and impartial judiciary that serves as a check on both the Executive and Legislative branches of government,” reads a press release from Green, who also explained that Democrats would pack the court with “liberal, activist justices who will pass rulings that conform to their dystopian, socialist agenda.”
It is an open question, to be debated among conservatives, whether fixing the size of the Supreme Court at nine justices is the best possible way to push back against the increasing politicization of the judiciary. In 2016, I proposed six different measures: (1) making better use of the confirmation process, (2) make use of radical jurisdiction-stripping legislation, (3) “un-pack” (i.e., shrink) the Supreme Court instead, (4) begin to utilize the judicial impeachment power, (5) statutorily prescribe a judicial interpretive methodology of originalism by which all federal judges would be bound, and (6) openly defy lawless judicial rulings by once and for all rejecting judicial supremacy.