On Packing the U.S. Supreme Court

I don’t do much politics on this site. I will sometimes comment on U.S. politics of national importance. Today’s topic is the plan by House Democrats to push a bill that will change the makeup of the Supreme Court (SCOTUS) to 13 members, instead of the present 9 members.

Currently, the Court has 3 liberal members, and 6 members who are either conservative or lean conservative. Adding 4 more members to go from 9 to 13 justices means that a 6-3 decision in favor of a conservative outcome to a case would become 6-7 and so the decision of the court would change to the liberal view.

So this is a deliberate attempt by the other two branches of government to control the third branch. As such, it is unconstitutional. So while it is true that the Court’s membership at 9 Justices is not written in the Constitution. The original size of SCOTUS was 6 members; it has had 9 members since 1869. The Court nine members from 1837 to 1863, 10 members from 1863 to 1866, and nine from 1866 to 1867, then eight members until 1869, when the Court went back to 9 members and stayed at that level.

SCOTUS has never had less than 6 or more than 10 members, and has had 9 members for most of its history, including over 150 years consecutively.

The reason that changing the Court from 9 to 13 is unconstitutional, IMHO, is that the reason for the change is for the two other branches to control the decisions of the third branch. Such an attempt at control violates the U.S. Constitution’s separate but equal doctrine of the branches of government. If the Court, at 13, does not behave as the Congress and President prefer, will they then add more Justices until the outcomes of cases pleases them?

What if, when Republicans control the Congress and Presidency, they increase the Court for the same reason, adding two Justices, so that the 6 conservative to 7 liberal votes becomes 8 conservative to 7 liberal? And then if Democrats later regain control of both branches, they might change the Court again — perhaps this time adding a rule of mandatory retirement or some other artifice, which will be calculated to give their political point of view again a majority? (Note that mandatory retirement at age 80 would remove liberal Justice Stephen Breyer.)

All such attempts by Democrats or Republicans to control the Court are essentially an attempt to change the form of government from three branches which are separate and equal, to a system where two of the three have an inordinate control over the third, which violates both separateness and equality. The current Justices will have to fear that a decision contrary to the ruling party will result in a new law that will remove or add Justices in some way, so as to obtain the decisions that the ruling party prefers.

I suggest that SCOTUS issue an opinion to the nation, in advance of such an attempt, that would declare an interpretation of the constitution which precludes court packing. I don’t believe that such a law would result in 4 new Justices being appointed by President Biden, as an appeal of the law would be sent to SCOTUS rather promptly, and no possible outcome other than rejecting the law as unconstitutional, on the above principles, would occur.

Ronald L Conte Jr

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2 Responses to On Packing the U.S. Supreme Court

  1. Matt says:

    I believe that the Constitution should be amended to require that all decisions from the Supreme Court must be unanimous in order to avoid the obvious politics there. The Constitution should be strictly interpreted correctly by all 9 Justices. It is shameful that major decision are always split, conservatives vs. liberal. However, in my opinion, conservatives vote more often based on the Constitution than liberals do.

  2. Michael says:

    As a veteran, I’m sad to say I’ve lost faith in any political leadership and the direction of this country. Corruption abounds, morals are lost, and big tech controls what we think, see or hear while aligned with a certain political party. It certainly doesn’t take a prophet to see where we are headed.

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