The Supreme Problem

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President Joe Biden has announced that “he would name a bipartisan commission to propose changes to the Supreme Court and federal judiciary.”

Analysis: This is code for ‘we will say the current make up of the court is racist and sexist as there is one Hispanic justice, one black justice and three female justice.’ Six out of the nine justices are men and women make up over 50 percent of the population. Systemic racism and white privilege will be factored into the commission’s finding without a doubt.

The Democratic attempt to add Supreme Court justices by legislation will be disguised as democratic which is supported by Senate Majority Leader Senate Majority Leader Chuck Schumer (see yesterday’s post) who recently told MSNBC that “we’re going to see what the commission says and go from there.”

Opposition has already been mobilized as West Virginia Sen. Shelly Moore Capito and Florida Sen. Marco Rubio introduced a bill that would create a constitutional amendment limiting the number of justices to the current nine. While an improbability, it may be the only way to ensure the current design going forward.

The Constitution simply states in Article 3, Section 1:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

http://www.law.cornell.edu/constitution

Since the Constitution does not establish a number of justices for the highest court in the nation, Democrats such as Nancy Pelosi argue the number of justices does not fairly represent the SIZE of the population of the U.S. which has grown significantly since 1876, when the number of justices was last changed.

1870 census populationcurrent U.S. population
38,558,371331,420,000

This population argument is invalid as we do not increase the number of Senators (100) or number of Presidents (1) as population grows. The clear goal is to allow President Biden / Harris to appoint at least four new justices to create a liberal majority (the current court is generally considered conservative 6 – 3). Political attempts such as the infamous F.D.R. court -packing plan during the Great Depression met with Congressional opposition. Unfortunately, Congress is controlled by Democrats so opposition would be weak unless prominent Democrats like Sen. Manchin oppose court packing plans.

Historical Timeline:

The Judiciary Act of 1789 sets the number of justices at 6. President Washington signed into law.

The Judiciary Act of 1801 reduced the number to 5.

In 1807, Congress increased the number to 7.

In 1837, Congress increased the number to 9.

In 1863, Congress increased the number to 10

In 1866 Congress reduced the number to 7.

In 1869, the Judiciary Act reset the number of justices at 9.

.no changes since 1869!

ANALYSIS:

While it IS constitutional to pass a law to change the number of Supreme Court Justices, it has remained consistent as the court, regardless of makeup has been an independent third branch of government. Presidential control over the composition, coupled with control over the Senate by the Vice- President (at least for the next two years) would be dangerous.

A check and balance would be removed, as it would under any President, Democrat or Republican. We can only speculate how this new liberal court would rule on issues ranging from free speech to gun control to immigration to social issues and legal protections for identity groups.

SCOTUS make up:

(conservative) Justice Alito nominated by George W. Bush 1/31/2006

(somewhat conservative) Chief Justice John Roberts nominated by George W. Bush 9/29/2005

(conservative) Justice Clarence Thomas nominated by George H.W. Bush 7/1/1995

(liberal) Justice Stephen Breyer nominated by Bill Clinton 8/5/1993

(liberal) Justice Elena Kagan nominated by Barack Obama 8/7/2010

(liberal) Justice Sonia Sotomayor nominated by Barack Obama 8/6/2009

(conservative)Justice Neil Gorsuch nominated by Donald Trump 7/10/2017

(conservative)Brett Kavanaugh nominated by Donald Trump 10/6/2018

(conservative)Justice Amy Coney Barrett nominated by Donald Trump 10/26/2020

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