In today’s New York Times, there is an opinion piece by Jean Edward Smith about President Roosevelt’s court-packing plan, the size of the Supreme Court’s membership, and the possibility that “[i]f the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective.” Indeed, it could. Justices retire, new Justices — with different views of the Constitution and the role of federal judges — are nominated and confirmed . . . (As for “thumbing its nose at popular values”: If the nine-justice Court survived, say, the flag-burning case, Furman, etc., I suspect it will survive this Term’s controversial decisions.)
Posted by Rick Garnett on July 26, 2007 at 08:16 AM
Comments
Since Smith wrote a book about FDR, you’d think he knew how that court packing thing worked out last time.
Steve: One question: Would Republicans continue to think judicial filibusters are unconstitutional, if Democrats suddenly had a couple of SCOTUS openings to fill? Not all of us thought that they were, but whether you’d see flip-flops from those who did depends on how shameless they are and how they weigh the political price they’d pay to do so.
Posted by: Simon | Jul 27, 2007 7:25:14 PM
Hey, as long as we’re suggesting a revival of ridiculous historical examples, it’s too bad the author didn’t know enough history to suggest that Reid and Pelosi might re-enact the 1801 Congress’s decision to cancel a term of the Supreme Court (by de-funding it, I think), which they did because Congress was dominated by Jefferson’s Democratic Republicans while the Supreme Court consisted entirely of Federalist holdovers.
Posted by: Scott Moss | Jul 27, 2007 12:20:03 AM
It would never get through the senate; and if it did, the new justices would never be confirmed.
One word: filibuster.
One question: Would Republicans continue to think judicial filibusters are unconstitutional, if Democrats suddenly had a couple of SCOTUS openings to fill?
Posted by: Steve Lubet | Jul 26, 2007 3:01:31 PM