Len’s Letters #32 What should Democrats do about the Court?

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Political Note #326 House Members who could elect a President 

The United States has been going through two important rituals.  Electing a President.  Selecting a Supreme Court Justice.  Today is a big day for both.  What was intended to be the third Presidential debate is scheduled for this evening.  The Senate Judiciary Committee has scheduled today for its vote to forward Amy Coney Barrett to the full Senate for confirmation as a Supreme Court Justice.

Democrats will probably win the election. (Don’t take anything for granted.  Complacency kills campaigns.) They will probably not prevent Barrett’s confirmation.  Democrats have been focusing on what this new Justice might take away – medical care through a ruling against the Affordable Care Act, the rights of women to an abortion in those states willing to prohibit abortions, democracy in a ruling that would choose who the new President would be.

Republicans have focused on the possibility that Democrats will attack the nominee’s Catholicism, that Democrats will reduce the credibility of the Supreme Court by expanding the size of the Court and handing several new appointments to Joe Biden.   Joe Biden and Kamala Harris have not yet answered questions about expanding the size of the court.  The American experience changing the size of the Court is instructive to us and should be to Joe Biden and Kamala Harris.

Consider the Presidents of the United States who have been involved in changes in the Supreme Court ‘s size.

• John Adams. The second President of the United States was defeated in the election of 1800 as was the Federalist majority in the House of Representatives.  To check the incoming Democratic-Republicans, Congress passed and Adams signed a bill to expand the judiciary, new judges to be appointed by Adams, and the size of the Supreme Court to be reduced from six judges to five.  The reduction would go into effect when there was a vacancy in the Supreme Court.  The intent was to prevent Thomas Jefferson from making an appointment to the Court.
• Thomas Jefferson. The new Democratic-Republican Congress and the new President repealed the law expanding the judiciary and reducing the size of the Supreme Court.  The Supreme Court, in Marbury v Madison found, among other things, that Marbury, appointed to one of the newly created judgeships, could keep his job as a judge.  The repeal of the Supreme Court reduction meant that when a vacancy arose in 1804, Jefferson could fill it.  With Jefferson’s second term of office coming to an end, in 1807, the Democratic-Republican House and Senate created a seventh seat on the US Supreme Court.  At that point, there were 4 Federalist appointees on the Supreme Court (appointments by John Adams and George Washington) and two Democratic-Republican appointees (both by Jefferson).  The seventh seat and Jefferson’s appointment, left the Court with a 4-3 Federalist majority. (Think about this Democratic-Republican expansion in contemporary terms.)
• Andrew Jackson. For political, but non-ideological reasons, the court was expanded to nine seats at the very end of Jackson’s term in 1837. Members of the Supreme Court still served on circuit courts, but appellate circuits had not been created to serve new Western and Southwestern states.  Two additional circuits were created and two additional Supreme Court seats were created – all within days of the end of Jackson’s term.  On his last day in office, he nominated two appointees, one of whom was confirmed under President Martin Van Buren.  The other nominee declined the appointment.  Van Buren made a recess appointment to fill that seat.
• Abraham Lincoln. Lincoln made five appointments during his tenure as President. One of those appointments was made in 1863, after the tenth Supreme Court seat was voted, created after a tenth circuit was created.
• Andrew Johnson. A nomination by Johnson was prevented when the number of seats in the Supreme Court was reduced from ten to seven in 1866. Johnson filled no seats.  The size of the court was reduced gradually as vacancies occurred.  The Court slimmed to eight seats, but never to the targeted seven.
• Ulysses S. Grant. In 1869, the Supreme Court was increased to nine members.  Grant’s two new appointments voted to overturn a previous 4-3 vote that had invalidated a statute permitting federally authorized paper money.  That decision led to a kind of retroactive controversy about court packing.
• Franklin Delano Roosevelt. The National Industrial Recovery Act, the Agricultural Adjustment Act, and a New York state minimum wage law were overturned by the Supreme Court during Roosevelt’s first term. Negative rulings on the Social Security Act and the National Labor Relations Act were expected.  Having won reelection in 1936 overwhelmingly, FDR blamed and targeted older members of the Supreme Court.  His plan was to appoint an additional Justice for every Justice over 70 who did not retire.  Too clever by half, there was a strong reaction against FDR’s proposal.  The proposal became unnecessary when Justice Owen Roberts changed his voting pattern.  He began upholding laws creating New Deal programs.

Between FDR and Ronald Reagan, the controversies were about jurisprudence and ideology, not about the size of the Court. Nominees weren’t challenged.  Even someone as potentially controversial as Thurgood Marshall only received 11 votes against confirmation.  The controversies grounded in jurisprudence and ideology and about the personal behavior of nominees began under Ronald Reagan.

• From Ronald Reagan to Donald Trump.
  • Ronald Reagan.
    • Robert Bork. Democrats saw this Reagan nominee as a danger to equal rights and opposed the nomination strenuously.  Bork’s confirmation was defeated 58-42.
    • Douglas Ginsburg. Ginsburg withdrew from consideration when his past use of marijuana was scrutinized.
    • William Rehnquist. 33 Senators voted against Ronald Reagan’s elevation of William Rehnquist to Chief Justice.
  • GHW Bush.
    • Clarence Thomas. GHW Bush’s nomination of Thomas was opposed out of fear of his opposition to equal rights and because some Senators were persuaded by accusations of his sexual harassment. Thomas was confirmed 52-48.
    • Harriet Miers, GW Bush’s White House Counsel Harriet Miers’ nomination was withdrawn when conservatives attacked her for being insufficiently conservative.
    • Samuel Alito drew considerable opposition despite minimal controversy. 42 Senators voted against confirmation.
  • Barack Obama
    • Sonia Sotomayor. Her confirmation was not controversial, but Republicans opposed her because she was too liberal.  31 Senators voted against confirmation.
    • Elena Kagan. Her confirmation was also not particularly controversial, but Republicans opposed her as well because she was too liberal. 37 Senators votes against her confirmation.
    • Merrick Garland. Majority Leader Mitch McConnell insisted that Garland not be considered for confirmation because the nomination was made in the last year prior to a presidential election. Had the nomination been considered and confirmed, it would have changed the court to 5 Democratic appointees and 4 Republican appointees.
  • Donald Trump
    • Neil Gorsuch. What controversy there was about his nomination harked back to the failure to consider Merrick Garland.  To avert a filibuster, McConnell led the Senate to prohibit filibusters against Supreme Court nominees. 45 Senators voted against confirmation.
    • Brett Kavanaugh. In addition to controversy about his jurisprudence, an accusation of sexual assault as an adolescent created unusual tension in consideration of this nomination.  48 Senators voted against confirmation.
    • Amy Coney Barrett.   Notwithstanding the Republicans having blocked Merrick Garland’s appointment, Majority Leader McConnell led the charge for an appointment when Ruth Bader Ginsburg’s September 2020 death occurred less than two months before the Presidential election.

The Court, with a confirmed Barrett appointment, would be composed of 6 Republican appointments and 3 Democratic appointments.  Fearing such a Court, many Democrats suggest expanding the Supreme Court to thirteen members if Joe Biden and Kamala Harris are elected and Democrats have a majority in the Senate.   Joe Biden and Kamala Harris have refused to comment on that possibility, If the Court were to be expanded to 13 Justices, Joe Biden would have four appointments he could make to the Court.  The Supreme Court would be composed of 7 Democratic appointees and 6 Republican appointees.

I have a different proposal.  In fact, I have three.

1. Expand the Supreme Court to 11 members, not 13. Expansion would be to right a wrong rather than concerns about judicial decision-making.  Had Merrick Garland been confirmed, Anthony Kennedy retired when he did, and Ruth Bader Ginsberg died when she did and replaced as the Republicans are striving to do, the composition of the Court in 2021 would be 5 Republican appointees, 4 Democratic appointees. If the Supreme Court were expanded in 2021 to 11 members and President Biden were to appoint two new Justices the Supreme Court would be composed of 6 Republican appointees and 5 Democratic appointees. (Remember the Court expansion under Thomas Jefferson in 1807.  The Court was expanded from 6 to 7.  Jefferson had a single appointment.  Democratic-Republican appointees were still a 4-3 minority.  Nothing wrong with emulating Jefferson.).

Joe Biden could emphasize his purpose by selecting 67-year-old Merrick Garland as one of the two Supreme Court appointments and, for age balance, someone in his or her early forties.  Like Thomas Jefferson’s Democratic-Republicans in 1807, twenty-first century Democrats would wait and win elections to gain a majority on the Court.

2. Attend to the Circuit Courts of Appeals and the District Courts. Critics suggest that reform in the federal courts below the Supreme Court is necessary.  They are rarely specific, though there are occasional references to the courts being overburdened.  There are some discrepancies in the Circuit Courts of Appeals; more and larger discrepancies in the District Courts.  Any reform of the lower courts should address equity rather than outcomes, although the result might be that Joe Biden would have some judges to appoint in addition to the Supreme Court appointments.   I’ll do a more detailed piece on the courts either before the election or afterwards.
3. Create a minimum age for Court appointees. Several critics of the Court deplore the practice of appointing people in their forties or early fifties to the Supreme Court, a practice intended to solidify that appointment for many years to come.  To offset that practice, critics have proposed 18-year terms for Supreme Court Justices.  That can’t happen without a Constitutional Amendment.  The Constitution seems clear enough (Though, who knows, Amy Barrett might not accept my statement about Constitutional clarity. She would insist on receiving briefs.). Justices “hold their offices during good behavior.”  The plain meaning of that statement is that Supreme Court Justices have life-time appointments.  There is, on the other hand, no Constitutional prohibition of a minimum age limit for a Supreme Court appointment. A limitation could be by statute.   Let’s say a minimum age is set at 62.  A Justice, appointed at the minimum age who retires at 80, would have served for 18 years.

Look at the chart below that indicates the possible number of years the current Justices (plus Amy Coney Barrett assuming she is confirmed) will serve.  Let’s create a minimum age for appointments.

I welcome comments on all three proposals.