The Supreme Court has nine seats. That number was established by Congress way back in 1869. Before then, Congress had set the number to be as low as six and as high as ten. But now a nine-judgeship Supreme Court is the law of the land and will remain so unless Congress passes a new law to change it.
It’s basic civics that schoolchildren learn: The way to change a congressional statute is for both Houses of Congress to pass a bill changing the law and for the president to sign it (or have his or her veto overridden by Congress). In a democratic nation governed by the rule of law, it is not acceptable for one political party to use obstruction of unprecedented proportions to nullify the law and impose its own contrary view on what the law should be without following the constitutionally-mandated process.
Yet that is exactly what the Republican Party has been doing since Justice Scalia’s unexpected death through their blockade of President Obama’s nominee to the Supreme Court, Judge Merrick Garland. For months, they said the next president should fill the vacancy. But as polls have forecast a Hillary Clinton victory, their tune has changed. Leading Republicans and conservatives are actually proposing to leave the current vacancy unfilled, but only if the American people vote to elect Hillary Clinton president in November. Some are openly talking about not allowing any Clinton Supreme Court nominee to be confirmed for any additional vacancies.
If this sounds familiar, it may be because Senate Republicans tried this in 2013 when they sought to unilaterally change the law and impose an eight-seat cap on the 11-seat District of Columbia Circuit. They (unsuccessfully) sought to prevent President Obama from filling any of three existing vacancies and restoring balance to what had been a far right D.C. Circuit court. The current conflict and planned constitutional crisis represent a massive escalation by Mitch McConnell and all the GOP senators who take orders from him.
By amazing coincidence, the three oldest justices today are ones that conservatives revile, either because of their progressive record (Ginsburg and Breyer) or because of a small number of progressive decisions in an otherwise extremely conservative record (Kennedy). The next oldest justice (the arch-conservative Clarence Thomas) is ten years younger than the youngest of those three. So conservatives are seeking to use obstruction to de facto shrink the number of justices and thus control the ideology of the nation’s highest court, just as they tried and failed to do with the D.C. Circuit. It is imperative that they fail again.
The American people have seen this type of political interference on an independently operating Supreme Court. Back in 1937, Franklin Roosevelt introduced his infamous “court-packing” proposal, which asked Congress to create a new seat whenever a sitting justice reached 70 and didn’t retire (up to six such new seats). The four conservative justices who most reliably found a fifth vote to strike down portions of the New Deal just happened to be over 70. As a result, FDR’s proposal was widely seen—and condemned—as an effort to give him the power to quickly change the ideological balance of the Court. Despite lopsided Democratic majorities in both houses, the proposal did not pass Congress, and it played a role in sharply reducing Roosevelt’s popularity and substantially diminishing the Democratic Party’s congressional majorities in the 1938 midterms.
Americans rejected FDR’s political interference with the Supreme Court, even though he sought to do it through properly-passed legislation. Republicans’ “court-unpacking” scheme represents the same type of interference with the high court, but they plan to do it regardless of whether legislation is passed lowering the number of justices. They are intending to act through obstruction, to prevent Congress from working rather than act consistently with the Constitution and the rule of law.
The GOP must pay a political price for this. It is critical that this direct assault against the integrity of the Supreme Court and the rule of law not succeed. Perhaps the most important way to stop it is to use our votes to ensure that Democrats control the Senate in the next Congress.