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Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
“It ain’t broke, so don’t fix it.”
That version of the old saying is what most Republicans and some Democrats think about the Supreme Court and the proposal to increase the number of justices on the court.
Most Democrats in Congress believe it is broken and that former GOP Senate Leader Mitch McConnell did it. He led the Republicans to block many of President Barack Obama’s federal court nominees plus changing the rules to ease confirmation of President Donald Trump’s Supreme Court and other judicial choices.
They charge that McConnell packed the Supreme Court with conservatives and now is the time to rebalance it with their own packing. Congress has the power to add new justices to reduce the influence of the relatively young conservative newcomers who may enjoy decades on the bench.
In 1937, Democratic President Franklin D. Roosevelt was faced with a majority of conservative holdovers who sometimes thwarted his recovery moves. After his stunning re-election victory in 1936, he proposed adding more justices. The Court majority then shifted, making packing unnecessary. “A switch in time that saved nine” was the quip of the day.
Roosevelt’s proposal had met some opposition, and he ignored history. John Marshall, perhaps the most influential Supreme Court justice ever, was a Federalist holdover for decades after his party fell into oblivion. But presidents of the party in power did not propose Court packing.
The problem today is that the Court needs to be fixed. Unlike the Marshall or Roosevelt situations, the Court majority was not the result of the natural course of history. It is the result of the obvious finagling by an excessively partisan McConnell.
President Joe Biden is naming a commission to suggest a fix. Adding justices is a possibility, but the obvious concern is that increasing the size of the Court could be proposed after every presidential election. Besides, Congress probably wouldn’t approve an increase.
The current Court, with six conservatives and three liberals, is likely to continue unchanged. Justice Stephen Breyer, a liberal, is being urged to retire so Biden can appoint his replacement. Otherwise, as when Justice Ginsburg died with Trump in office, a liberal might later be replaced by a conservative.
Even though the current balance cannot readily be altered, reasonable changes may be possible. They could reduce the threat of partisan wars spreading further into the Court.
The first reform could come in the Supreme Court itself. In many decisions, it must interpret the law and settle on just what Congress intended. Conservatives can decide what liberals meant. That’s really legislating when it determines how the law will be applied and rules out other approaches.
Why do that? Congress is just across the street and open for business. The Court could decide on its interpretation of congressional intent, but delay the effective date of its decision for six months. During that period, Congress would be on formal notice either to amend the law, resolving the issue, or to do nothing and let the decision stand.
In that way, decisions might be taken from the hands of an unelected holdover Court and given to a current Congress. Under the Constitution, Congress itself has the power to control the Court’s jurisdiction, so it might itself be able to adopt this requirement.
Another reform, this time in Senate rules, could prevent McConnell-type moves. Judicial nominations could be required to allow for a minimum of 60 days of review, including committee hearings and investigation of nominees, with a decision by the full Senate after no less than 90 days.
Because federal judges receive lifetime appointments, they deserve careful review before taking office. Senate confirmation may be as much about their proven competence to make decisions often affecting all Americans as their political philosophy.
Finally, as previously suggested in this column, the president and Congress could agree on making temporary appointments to the Supreme Court, just as has always been done for lower federal courts.
A new slot on the Court would be created and filled by the usual lifetime appointee. The Court would be enlarged only until one of the original justices ended their service. At that point, the temporary slot would disappear and the justice in the temporary position would take the permanent seat.
With both Congress and the presidency now under Democratic control, this might be a more acceptable approach for skeptical Democratic senators, such as West Virginia’s Joe Manchin and Arizona’s Krysten Sinema, than is enlarging the Court. It could set a precedent for a time when there is a split in control between the Senate and the White House.
To his credit, Chief Justice John Roberts seems intent on keeping the Supreme Court from being reduced to a partisan forum. That is a worthy goal, and the Court, Congress and Biden’s commission need to take that same long view and protect the Court’s independence.