When the notion came up during the presidential campaign of fiddling with the size of the United States Supreme Court, I wasn’t “all in.” With nine justices serving on the Court since shortly after the Civil War, we have had balance over the long stretch of time and that has served our nation well. It doesn’t mean all of us have gotten everything we wanted when the Court has ruled, but then, who does? Given the ever-present threat of tyranny by the majority, who should?
But here’s the rub: that well-honed balance was thrown out of sync five years ago when the Republican Senate refused to even consider President Obama's rightful choice to fill the vacancy when Antonin Scalia died. All they did was stonewall, for most of the final year of Obama’s presidency. As if our 44th president had only been elected to a three-year term.
Some people say to those of us who still complain about that theft, get over it. To which I say, why should we? A president is elected for four years, not just three, and for those four years, the president is entitled to a hearing on any choice for the Court. It is every president’s right. Every president’s constitutional right. (Lest we forget, Trump-nominee Amy Coney Barrett replaced the late Ruth Bader Ginsburg just days before last year’s election.)
That is how it is supposed to work. Except the Republicans changed the rules, and stole a Supreme Court nomination from its rightful owner.
It created an imbalance the American people hadn’t chosen. And it gave Donald Trump the opportunity to fill three seats on the Court. If Mitch McConnell and his mob had played by the rules, one of those would have been Obama’s.
And that would have meant that today we would have a 5-to-4 conservative court, not 6-to-3.
Of course more often than not in modern times, at least one Justice has been a swing vote on the Court, which means some major issues could go either way. Today that swing vote would be Chief Justice John Roberts, who was appointed by George W. Bush, but who subsequently went against his conservative colleagues on Obamacare, and again just last Friday opposed them on a decision in California about religious gatherings in private homes. But unlike Obamacare, when Roberts’ swing vote saved it, this time, even with the Chief Justice’s ideological defection, the conservatives still prevailed. In a 6-to-3 court, a swing vote doesn’t make a difference.
That pretty much defines the corruptly consummated imbalance on today’s Supreme Court. And that’s pretty much why, if President Biden does try to expand its size, I’m now all in.
After all, the Court’s current composition is only a consequence of convention, not of the Constitution. In fact the Constitution says nothing about how big the Court should be. Under George Washington it was six. Through the presidency of Abraham Lincoln it fluctuated between five and ten.
To be sure, there are effective arguments against an expansion. The more virtuous was made just a week ago by the oldest justice now serving, and a liberal no less: Stephen Breyer, who told colleagues at his alma mater Harvard Law School, “I hope and expect that the Court will retain its authority. But that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics.”
The trouble is, that trust— trust in the balance of the Court as a benchmark of the voters’ will— was broken when Obama’s right was denied.
The more viable argument is a simple saying: If it ain’t broke, don’t fix it.
I might still fall in that camp except for one regrettable reality: it is broke. That’s why President Biden just announced a bi-partisan commission of former judges, political scientists, lawyers, and think tank scholars, to study the issue of restoring the balance of the Court.
Look at it this way: in all the years I have been alive… and that number is getting way up there… there have been 19 presidential elections. But in only one— just one out of 19— did the Oval Office pass from one president to another from the same political party. That was in 1988, when Republican George H.W. Bush succeeded fellow Republican Ronald Reagan. The last time it happened before that was a full 60 years earlier— or if you like, 16 elections earlier— when Republican Calvin Coolidge was followed by fellow Republican Herbert Hoover… and that didn’t turn out to be such a great bargain.
Otherwise, at the end of every presidency, whether one or two terms long, through 35 elections, the American people have decided it was time for change. A change in policies, a change in culture, a change in the ideology of the Court.
That is how we maintain balance. By winning it. Not by stealing it. Expand today’s Court by two justices from nine to eleven, it still would have a conservative edge. But the other side— again, defined by the voters’ will— once again would have a fair chance. That would be the status quo right now if “fair” had ever been a part of Mitch McConnell’s vocabulary.
Granted, the whole argument might be moot. To expand the Court, a president needs a majority of the Congress. Which means that if eventually Biden does try, it’ll likely be a non-starter. Even some Democrats, like Joe Manchin— who naively trusts in the bipartisan instincts of his colleagues across the aisle— would probably vote no.
But still, if somehow such an effort were to succeed, it would not lead to a stronger ideological imbalance. It would lead to a stronger balance.
Ultimately, over the long stretch of time, that would be good for all Americans.
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For almost five decades Greg Dobbs has been a correspondent for two television networks, a political columnist for The Denver Post, a moderator on Rocky Mountain PBS, and author of “Life in the Wrong Lane.” He has covered presidencies at home and international crises around the globe. He won three Emmys, and the Distinguished Service Award from the Society of Professional Journalists. Some of his essays also are published— with images— on a website he co-founded, BoomerCafe.com.