Stacking the Court--Really Packing the Court

During the great Depression, upset that the Supreme Court was striking down so many aspects of his New Deal legislative package, the President Franklin Delano Roosevelt posited a scheme which came to be called the court-packing scheme. Roosevelt suggested that for every justice over the age of 70 that didn't retire, that he be allowed to appoint another younger justice, in order to help the Court with its workload. At the time, in 1937, six of the Court's nine justices were over teh age of 70 and they formed the largely conservative block that was blocking FDR's legislative agenda. The plan was so audaciously political and blatant that only 20 Senators voted for the plan. In the Court's next term, a timely reversal of opinion, the so-called "Switch in Time that saved Nine" upheld some New Deal legisltaion and the court packing scheme fortuneately became an interesting historical story for law geeks and history buffs. Until now, that is. Marshall University (WV) history professor Jean Edward Smith posits a scheme not unlike FDR's court packing scheme.

Smith writes that there is nothing magical about the number of justices on the Court, in fact that number is set by legislation as nothing in the Constitution indicates how large the Court should be. Like a number of left-leaning academics, Smith is not happy with the Court's most recent term and suggests that Chief Justice Roberts and the "five-man majority" don't cut back on the conservative rhetoric and don't stop "thumbing its nose at popular values" then a Democratic President and Democratic Congress can simply add another justice or two to the Court's roster.

Such a move would be so blatantly political as to make FDR's claim almost defensible. So the left's answer to the rightward turn (and let's be honest, the Court's term had a discernable shift to the right) is to pack the Court with lefty judges because they don't like the political overtones of the Court's opinion. At least FDR came up with a weak, but plausible, reason even if it was agism.

Ann Althouse picks apart Smith's argument, noting the blatantly political overtones of the idea, but noting that Smith fails to provide any evidence of which values the Court has snubbed.

Okay, now Smith seems to be taking a position, though there's no substance in his piece that backs this up, but even if it were backed up, it would be an idiotic point. He starts out fretting about a Court that enters the political sphere, and he ends up worrying about the Court failing to pick up the values of the political majority. So which is it?

Of course, I know: You want the Court to transcend politics but to transcend it in the direction that squares with your politics. I laugh at that.

And it is a good laugh.

If a Democratic President and Congress went this route, you can all but rest assured that that Congress would be voted out of office in the next election, there would be mass unemployment among Hill staffers. It would not surprise me to see 200 hundred new faces in Congress in 2011, so many new faces that they would need name tags so the House Doorkeeper would know who is a member and who is not. The Democratic President would be able to kiss a second term good bye and would probably have poll numbers that would make President Bush look like a prom king.