World News – United States – Beyond the Courts: The Supreme Court has always been political

During her swearing-in at the White House the week before polling day, newly-appointed Supreme Court Justice Amy Coney Barrett said she would resign her duties impartially and not in line with personal political preferences History, however, suggests this is doubtful It is more than a coincidence that the « conservative » judges who currently sit on the court have all been appointed by Republican presidents and « liberal » judges by the democrats Despite all the perpetual talk that the judiciary is above politics, it never was – and this past offers a clue as to what it might be reasonable for Joe Biden and a Democratic Congress , if they are elected, to do about the composition of the Supreme court

If President Donald Trump wins the election, the partisan character of the Court will be one more reason for him to be happy: with Barrett the youngest judge, at just 48 years old, the Court’s conservative leadership will be assured for a generation But if Democrats win, national attention will likely turn again to the fact that, although federal judges are appointed for life – it’s in the Constitution – the size of the court belongs to Congress, and in fact changed seven times in the country ancient history

During election season, Biden was reluctant to say whether he was going to ‘wrap’ the Supreme Court It’s understandable The phrase ‘court wrap’ is pejorative: stack the game, change the rules But, the game is already stacked against the political preferences of a majority of Americans: 2004 is the only year since 1988 that the Republican candidate has won the most popular votes in the presidential election Still, Republican presidents have appointed 6 of the 9 sitting Supreme Court justices and acting to bring the highest court in line with national preference, as expressed by the vote, would be both politically appropriate and historically consistent. / p>

This is not the first time in the history of the Court that Congress has considered changing its ideological makeup The original Judicial Act of 1789 set the number of judges at six When the Federalists were defeated in 1800 , lame Congress cut court size from six to five – maliciously, to deprive Democratic-Republican President Thomas Jefferson of a nomination New Democratic-Republican Congress repealed federalist legislation and increased the list to seven to give Jefferson an additional appointment In 1837, the size was increased to nine to give patronage-hungry Andrew Jackson two more appointments.When a Democrat, Andrew Johnson, became president upon the death of Abraham Lincoln in 1865, a Republican Congress voted for reduce the size to seven (obtained by attrition) to ensure Johnson would not have a nomination After Ulysses S Grant was elected in 1868, to Congress, to give Grant two new appointments, restored the court to nine, where it stands today

Perhaps most famous, Franklin Delano Roosevelt tried to impeach the Supreme Court in 1937 Judges were frowned upon by critics like columnist Drew Pearson as ‘nine old men’, and FDR thought they had to put themselves in tune with public opinion In March 1937, when five Conservative judges repeatedly overturned his progressive New Deal legislation, an angry Roosevelt took the nation in his confidence in a « Fireside Chat, » and declared that he needed to « save the nation. Constitution of the Court, and the Court itself « 

His resonant words: “My plan is not an attack on the court; he seeks to restore the Court to its historic and legitimate place in our constitutional government, and to return it to its lofty task of once again building on the Constitution « a living legal system »

His plan involved the introduction of a bill, known as the Judicial Procedures Reform Act, providing that the president would have the power to appoint a judge for every member of the Supreme Court over the age of from 70 years to a maximum of six additional judges

The judicial wrapping bill was dead when it came to the Senate Senators from Roosevelt’s own party did not like the triumph of the tribunal and the measure was tabled But Roosevelt made his point law put political pressure on the court One of the Tory judges, Owen Roberts, made a face stunner and voted with the Liberals in the West Coast Hotel case, which upheld a 5-4 pay law Washington state minimum This was known as the « Time Shift That Saved Nine » Although some historians claim Roberts’ reverse vote had nothing to do with Roosevelt’s proposal, regardless Ultimately all five Tory judges died or have retired The FDR has appointed nine liberal judges during its presidency

Democrats will likely run out of blood if they take the Senate and keep the House, which is increasingly likely Their leader, Senator Chuck Schumer, has previously announced that « everything is on the table » L court packaging may seem politically unpleasant, and could only exacerbate the problem if Republicans hit back when the political pendulum swings to the right But a Democratic majority in Congress has other options

For example, they could implement a policy – without changing the life tenure of the federal judiciary, in accordance with the Constitution, under which judges would rotate out of the Supreme Court to temporarily take seats in lower federal courts Another possibility, proposed by the late Dean of Cornell Law School, Roger Cramton in 2005, would be to impose 18-year term limits on Supreme Court justices, thereby circumventing the need for a constitutional amendment by declaring that instead of retiring the old judges would instead, be prepared to replace if another judge dies or recuses herself, and would have the option of sitting as a senior judge in lower federal courts Packing the court? It all depends on how you look at it

Over a century ago, comedian Finley Peter Dunne quipped that « Supreme Court is following return of elections » The line is often quoted with a nod to how easily the court can be influenced; now, however, the court is out of step with majority opinion – and if Biden wins, he will also be irrelevant on election results

What happened in the 1930s could happen again: some of the other ‘conservatives’ might change and vote with the liberals on key cases We’ll have to see It’s not 1937, but we’re living again troubled times – and if extraordinary steps are needed to get Dunne’s joke taken seriously, those steps will be in keeping with the history of the Court

James D Zirin, former federal prosecutor, is the author of Supremely Partisan, a book on raw politics and the Supreme Court

United States Senate, United States Supreme Court, Amy Coney Barrett, Court Proceedings Reform Bill of 1937, Donald Trump