Court packing, a phenomena made famous by none other than FDR in the 1930’s, is making a comeback among the progressive wing of the 2020 Democratic candidates. Three candidates have already come out in support of some form of altering the structure of what should be a neutral and nonpolitical government body.
After a slew of New Deal programs were ruled unconstitutional in the mid 1930’s, FDR proposed a bill which would allow him to appoint another Justice for every seated Justice older than 70 and 6 months, or who had been serving for longer than 10-years. The public backlash towards what the country viewed as tampering with the only independent and nonpartisan interpreter of the Constitution and our laws kept the bill from gaining any traction, but modern Democrats seem to be following in Roosevelt’s footsteps.
This new wave of politicizing the Supreme Court comes after decades of both parties trying to use the courts to shape public policy without standing and without legal justification after losing the legislative battle.
In 2016, when Justice Antonin Scalia passed away, President Obama attempted to nominate Appeals Judge Merrick Garland to fill the conservative originalist’s vacant seat. McConnell declined to hold a hearing for Garland, Donald Trump was able to win the presidency and successfully placed Neil Gorsuch onto the Court, maintaining the 5-4 conservative majority.
Late last year, when Justice Kennedy stepped down, Trump, after a long battle in the Senate over a sexual assault accusation against his nominee, nominated Brett Kavanough to the highest Court.
Who the candidate will nominate to the Supreme Court in the event of a vacancy is now a major selling point for every campaign.
Pete Buttigieg has called to up the number from the current 9 to 15, nearly doubling the current count. In an attempt to make it seem less partisan than it is, Buttigieg would frame the nomination system so that 5 of the Justices would have to be unanimously agreed upon by the other 10, meaning he would only be able to appoint 1 Justice instead of an additional 6. Beto O’Rourke is in agreement with Buttigieg, saying 15 Justices is “an idea we should explore.”
Senator Warren, who is enjoying a strong post-debate polling boost, said increasing the number of Justices is “a conversation worth having.”
Sanders took a more sly approach. During the most recent DNC Primary Debate, Senator Sanders came out against direct court packing, but followed up by saying “we’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.” Sanders’ plan would allow him to swap out Justices that he disagrees with and replace them with more Realist Justices from lower courts.
Surprisingly, Justice Stephen Breyer, who had been serving on the court since 1994, wants to actually limit the number of Justices on the Court from 9 to 7, saying if it’s good enough for Massachusetts it’s good enough for the US.
Regardless of your views on this matter, the Supreme Court will continue to be a hot political issue coming into the 2020 election.
Categories: U.S. News