Mises Wire

Congress Should “Pack” the Supreme Court

One of the many political myths to which Americans continue to cling is the idea that the Supreme Court is an “non-political” institution and that its traditions and institutional framework are sacrosanct. 

The court has never been non-political, of course, and has always been composed of political appointees closely connected to elected officials in Washington. 

Indeed, the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

Similarly dubious is the idea that the court must be composed of nine judges and that the US Senate has an obligation to appoint new members when a vacancy occurs. It is even widely assumed that the US Constitution dictates the size and makeup of the Supreme Court. In truth, the Constitution is silent on this matter, the Court has not always been composed of nine judges, and there have not always been an odd number of justices. At times, the Court has functioned on a super-majority model. 

[RELATED: “Abolish the Supreme Court”]

Following the death of Antonin Scalia, though, many otherwise-well-informed people were absolutely convinced that the US Senate was acting contrary to the Constitution when Senate Republicans announced they had no intention of filling the vacancy until after the 2016 election. 

Indeed, this puts Trump in the position of appointing potentially more than one Supreme Court justice during a single four-year term. He comes in with a vacancy on day one, and the three oldest members of the Court are all left-leaning judges — which means the complexion of the Court could be changed considerably over Trump’s term.

While the political climate will no doubt result in a Scalia replacement being picked relatively soon, the Senate has no obligation to ever ratify anyone to fill the Scalia vacancy. The Senate is constitutionally free to refuse to confirm any new justices indefinitely, thus making a de facto change in which the Court consists of eight justices. The Congress overall is also free to pass a law formally reducing the size of the court. But it need not do so. 

Undermine the Court by Making It Bigger 

However, there is no reason why the Congress could not go in the opposite direction and appoint multiple new members to the Supreme Court. It certainly has the Constitutional authority to do so. As was the case with Franklin Roosevelt’s so-called “court-packing” plan, enormous reforms to the Supreme Court require nothing more than a change in statute, or in come cases, Senate inaction. 

This move would help to make it abundantly clear the fact that the Supreme Court is a political institution just as it was always intended to be. It would also be helpful in asserting Congressional supremacy over the Court. Apart from the Constitutional mandate that there be a Supreme Court — of indeterminate nature — it is totally a creature of Congressional regulation.

[RELATED: “The Mythology of the Supreme Court”]

If Congress wishes it, it could fill the Scalia vacancy, and then add three or more seats in recognition of the approaching deaths and (possible) current senility of Justices Breyer (age 78) Kennedy (age 80), and Ginsburg (age 83).

As justification, Congress need only explain that the 3 new seats will allow for new justices to be ready and already trained on “day one” following the next death or resignation on the Court. Congress can elect to then not fill the Ginsburg vacancy (for example) and allow the court to slowly revert to nine judges. 

But why be so conservative? Given that the Supreme Court is now more of a Supreme Legislature than a Supreme Court — issuing what are essentially Constitutional amendments with each new ruling — the court could quite reasonably be expanded to be more representative of the 320 million people the justices like to continually boss around. 

Indeed, as the court has become vastly more powerful, it has become far less representative. In 1790, for example, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans. 

[RELATED: “The US Should Have 10,000 Members of Congress”]

If one seeks a court that actually knows something about what’s going on the United States, the very least the Congress could do is increase the size of the court to 50 justices with the intent of having one justice from each of the 50 states. 

On the other hand, perhaps we’re just wasting our time with details when what we really should be doing is stripping the Court of everything but its Constitutional powers. After all, the US Constitution grants jurisdiction to the Supreme Court in only a small handful of cases.  According to the text: 

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Constrained to its Constitutional powers, the Court would effectively have no power at all over anything that took place within the boundaries of a single state. Moreover, outside the Supreme Court, the federal court system is totally at the mercy of Congress since the Constitution stipulates that federal courts exist only when “Congress may from time to time ordain and establish” them. 

In all of this, however, the important thing to keep in mind is that the Supreme Court does not demand our reverence, our awe, or our respect for its little traditions and institutions. It’s merely a group of political appointees that deserve about as much respect as the members of the Civil Aeronautics Board

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