 | Some readers of my post on "Leveling a Tilted Court" (see below) asked if my call for increasing the number of justices on the court amounted to an endorsement of "court-packing." Opponents of Franklin Delano Roosevelt's Judicial Procedures Reform Bill of 1937 derisively called the critical purpose of that bill "court-packing." The bill allowed Roosevelt to appoint a new justice for each justice over 70 and a half years old. Although the bill was couched as a measure to improve the court's functioning with younger justices Roosevelt's proposal was not about age. |
Opponents did not object because it would have increased the number of younger justices. Rather, they objected because his proposal would have permitted him to appoint justices more favorable to his economic proposals. And as planned by Roosevelt, court-packing means adding justices to the court for the express purpose of receiving favorable decisions.
These considerations show that the negative view of adding more justices to the court is that it promises to make court decisions less fair, that is, likely to favor one side consistently. As I have outlined below, adding more justices to the court would make the court decisions more honest and less predictable. One way of ensuring that the public appreciates the court's growing fairness is to add even more justices from the list of "approved justices" Trump received from the Federalist Society. Additional justices, not recommended by the Federalist Society, could be added for balance. And if increasing the number of justices needed to balance the court results in a Supreme Court of 23 or more, so be it.
These considerations show that the negative view of adding more justices to the court is that it promises to make court decisions less fair, that is, likely to favor one side consistently. As I have outlined below, adding more justices to the court would make the court decisions more honest and less predictable. One way of ensuring that the public appreciates the court's growing fairness is to add even more justices from the list of "approved justices" Trump received from the Federalist Society. Additional justices, not recommended by the Federalist Society, could be added for balance. And if increasing the number of justices needed to balance the court results in a Supreme Court of 23 or more, so be it.
Leveling a Tilted Court
September 28, 2020
cales of Justin published February 14, 2018 by Steve Nease politicalcartoons.com Republicans have biased the Supreme Court and the federal judiciary. That is, Republicans used their control of the Senate to subvert accepted practices for confirming judges. Contrary to accepted practices, Republicans confirm judicial candidates who say that they will judge cases according to conservative orthodoxy, regardless of the fallout for society. Previously, the Supreme Court tended to weigh the outcomes of their decisions for society, along with legal principles. Amy Coney Barrett, the latest Republican nominee to the Court, has expressed a willingness to disregard stare decisis. Stare decisis is the legal principle that allowing a flawed decision to stand may be better for the country than upsetting the legal system with continually changing rulings.
During the Obama, Administration Republicans failed to confirm 69 of his picks because the candidates did not affirm conservative legal principles. Republicans have confirmed 194 of Trump’s judicial appointments, including three found unqualified by the American Bar Association. Most importantly, Republicans refused to consider Obama’s pick for the Supreme Court, Merrick Garland. Their justification for ignoring their duty to consider a Supreme Court nomination occurred within a year of a Presidential election. They claimed consideration of the Garland nomination was too close to a Presidential election. Donald Trump’s confirmation of two Supreme Court justices, and likely confirmation of a third, will tilt the Court to the far right for at least a generation.
During the Obama, Administration Republicans failed to confirm 69 of his picks because the candidates did not affirm conservative legal principles. Republicans have confirmed 194 of Trump’s judicial appointments, including three found unqualified by the American Bar Association. Most importantly, Republicans refused to consider Obama’s pick for the Supreme Court, Merrick Garland. Their justification for ignoring their duty to consider a Supreme Court nomination occurred within a year of a Presidential election. They claimed consideration of the Garland nomination was too close to a Presidential election. Donald Trump’s confirmation of two Supreme Court justices, and likely confirmation of a third, will tilt the Court to the far right for at least a generation.
