A new look at "court-packing"

[KamaAina]

Contrary to popular belief, the size of the Supreme Court has not always been nine. In fact, over the years, it has ranged from six to ten.

http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Size_of_the_Court

The United States Constitution does not specify the size of the Supreme Court, but Article III authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices to correspond with the growing number of judicial circuits: the court was expanded to seven members in 1807, nine in 1837 and ten in 1863.

At the request of Chief Justice Salmon P. Chase, Congress passed the Judicial Circuits Act (1866) which provided that the next three justices to retire would not be replaced; thus, the size of the Court should have eventually reached seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. However, this law did not play out to completion, for in the Judiciary Act of 1869, also known as the Circuit Judges Act, the number of justices was again set at nine, where it has since remained.

So, if we had the political will (a rather big "if", to be sure, judging by the tenor of the health care debate), we could, theoretically, break the right-wing ideologues' stranglehold on the Court simply by creating two new justices, and having Obama appoint them.

[T Wolf]

1. Big assumptions - 1) that enough Dems would go along with this. 2) That Obama would appoint

liberals.

Neither is a given at this point.

[DJ13]

4. #2 is the bigger question

[SemiCharmedQuark]

5. Only to people who have absolutely no grasp of history.

FDR, a president that I doubt people on DU would argue is RW, failed so completely in his attempt to do this that it has served as a warning for half a century.

[DJ13]

9. My post wasnt really a comment on packing the court

[KamaAina]

2. I have no expectations that Obama would appoint liberals

however, he would at least not appoint red-meat conservatives in the Roberts/Alito mold. Thus, there would be six moderate/liberal justices and five wingers. All of a sudden, a lot of those 5-4 decisions that go against us would turn into 6-5 in favor.

As for enough Dems going along with it (even if there are enough, after the Chokely debacle in Mass.), that's the whole problem...

[Ter]

8. How many votes would they need, 60?

[SemiCharmedQuark]

3. That worked out swell when FDR tried it.

[melm00se]

6. yes

the court could be loaded up by increasing the number of justices but there is the potential backlash:

Obama does it now, increases the court to 11 or 13 or 15 or whatever it takes. Exactly what would prevent the republicans from doing the same the next time around?

the better solution is to run good quality candidates, hold on to the presidency and Senate for 12 or 16 years and pack the court that way with young justices who will hold to their appointing principles.

[Ter]

7. This topic has been done to the core

FDR was far more powerful than Obama, and had like 70 Democrats in the Senate. He still couldn't get it done. No way Obama can either, and he knows it, as did Clinton.

[KamaAina]

10. All of this is pure specualtion, of course

I'm not holding my breath on it actually happening any time soon. But I was reminded yesterday that nine justices (like 435 representatives in the House) is not some sacred number brought down from the mountains on stone tablets, but can be, and has been, changed.