Not Yet (But Almost Undoubtedly Later)

To paraphrase George Orwell the three branches of the federal government are equal but in reality the Supreme Court is more equal. The legislative branch can pass a bill, the President can sign it into law and the Supreme Court can then invalidate it – pretty much end of story.

In the last two weeks there were two developments worth mentioning with regard to the Court. First President Biden named a 36 member commission to study the Supreme Court and make recommendations on what, if anything, to do about it. Then a group of progressive members of Congress put forth legislation to increase the number of justices from the current nine to thirteen.

Based on how ineffective and unhelpful they have been in my lifetime; I don’t have a lot of confidence in commissions. I will readily admit I don’t even know who any of the 36 members are and I’m not willing to research it. If the commission comes out with any good recommendation(s) they would give any attempted change some political cover and the veneer of credibility.

The current makeup of the Court is close to scandalous. Antonin Scalia died with almost a year left in the Obama administration and Mitch McConnell along with then Senate Judiciary Committee Chair Chuck Grassley conspired to deny Obama nominee Merrick Garland even a hearing citing some made up “rule of convenience” about not filling a vacant seat in a presidential election year. In an election that is still under a cloud Donald Trump wins and shortly thereafter far right Neal Gorsuch takes the seat. Then Anthony Kennedy retires under “interesting circumstances”. (His son works for Deutche Bank and was one of the people handling Trump’s accounts.) He is replaced by Trump nominee Brett Kavanagh despite credible rape and sexual misconduct allegations. Just weeks before the 2020 election, where Trump was the underdog and ultimately lost, Ruth Bader Ginsburg died. In a rush job McConnell and then Senate Judiciary Committee Chair Lindsey Graham of South Carolina confirmed Amy Coney Barrett to the bench despite an incomplete background check. To say Trump, McConnell and company tainted the reputation of the Court is a polite understatement.

Extreme as they may be Gorsuch and Barrett are solidly entrenched on the Court. Kavanagh clearly committed impeachable offenses during multiple Senate confirmation hearings and theoretically could be removed via impeachment but in today’s Senate that is an impossibility. Therefore we are stuck with the Trump Trio.

There are several ideas out there about Court expansion and/or modification. All include expanding the Court. This is not Court packing. The number of justices is not set in the Constitution and has changed several times during our history. Increasing it would simply reflect the increased population and complexity of today’s America. This is one change that could be accomplished by congressional legislation. With the current filibuster rule this has no chance of occurring. The Republicans worked for decades to pack the Court with their people, resorting to flat out cheating in the end. They are not going to give it up.

Of the various options offered the one I find the most intriguing – in addition to simply increasing the number of justices – is changing the current lifetime appointment to a single 18 year term. That and several other worth considerations call for amending the Constitution which is even a higher bar to clear than simply beating a filibuster. They may happen someday but that day is not in the immediate future.

Nancy Pelosi, who controls the House agenda, has said she will not put the current legislation on the floor. I agree with her. At the moment I doubt it would pass the House and if by some miracle it did it would be DOA in the Senate regardless of what Chuck Schumer did.

This is a bill (imperfect as it is) whose time almost undoubtedly will come but now is not that time. Let’s wait the 180 days for the Commission’s report and go from there.

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