On the campaign trail last fall, then-presidential candidate Democrat Joe Biden called the nation’s court system “out of whack” and vowed to convene a bipartisan commission of legal scholars to recommend judicial reforms.
The comment came in response to a question about adding justices to “pack” the Supreme Court, a hot-button issue in the closing weeks of the campaign.
In mid-April, Biden made good on the promise, assembling a task force of lawyers, former judges and constitutional scholars, some with conservative leanings, some with progressive, to “analyze” the system — but not to propose policy. Let’s hear what the commission has to say regarding the judicial system as a whole and what improvements could be made. That would certainly be of interest.
But whatever the group’s analysis points to, America should not diverge from its nine-justice Supreme Court.
The suggestion that adding more justices somehow levels the playing field employs a logic that most upstanding jurists couldn’t abide.
Americans would say they oppose the politicization of the court. Adding more justices to shift the balance on political issues would be the ultimate politicization. Where would it end? Why wouldn’t the next Republican president add even more to tip the balance back in a more conservative direction? That’s not how the American judicial system is supposed to work.
The Constitution doesn’t dictate the number of Supreme Court justices, and that number vacillated in the early years of the country. Since 1869, though, nine has been the right number. That shouldn’t change.
This isn’t the first time expanding the Supreme Court has been pondered. After a landslide re-election victory in 1936, President Franklin D. Roosevelt proposed increasing the number of justices to 15. Though FDR suggested the change would somehow make the court more “efficient,” opponents saw his real motivation to be adding jurists who looked more favorably on some planks of his New Deal than the nine seated on the bench at the time.
Eventually, two of the justices came around to support FDR’s plan (which created Social Security), and FDR’s fervor to expand the court dissipated. By 1942, FDR had appointed seven of the nine justices on the court.
That’s how it works. The Supreme Court changes over time, presidents come and go, but since 1869, nearly every president (so far) has had an opportunity to put at least one new justice on the court. Even James Garfield, who died six months into his first term, had a chance to get a Supreme Court pick confirmed. Jimmy Carter is the lone standout who didn’t have to replace a justice in his four-year term.
What Biden’s task force could do is help establish ground rules for taking up the process to replace a justice. President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia eight months before he left office, but the Senate refused to consider the pick. Iowa’s U.S. Sen. Chuck Grassley, who as then-chairman of the Judiciary Committee, held the trump card, as it were, refused to hold confirmation hearings on Garland.
Then last fall, President Donald Trump got an appointment confirmed just eight days before the November election. Virtually every senator from the tri-state area did an about-face as to how they thought the two situations should be handled.
Americans believe in fairness, and establishing protocols to be agreed upon and stuck to would help keep some of the politics out of the nominating process.
Expanding the Supreme Court, on the other hand, would open the floodgates to political interference in the judiciary — a dangerous move. A bench of nine has served America well for 152 years. Biden should not tamper with the size of the court.