The Supreme Court and the Will of Congress

^{Background: The Supreme Court}

Susan Heathfield, currently holding the fort over at About.com: U.S. Conservative Politics, blogs about an article by The American Thinker's Ed Lasky, suggesting that Congress could impair the independence of the Supreme Court.

Moving point by point through Lasky's column:

Senator Chuck Schumer - one of the most powerful Democratic Senators - has announced that he will fight any new Supreme Court nominee from George Bush. He apparently would rather have vacancies in the Court until a Democratic President is in place to nominate judges that a presumably Democrat Senate will confirm.

While this is an extreme option, it is well within the established power of the Senate's advise-and-consent role. The Senate has the power to approve a candidate, decline a candidate, or block a candidate. This is how the process works.

Photo: Alex Wong / Getty Images.

But I do question why Senator Schumer would say such a thing when there is no reason to believe that there will be a Supreme Court vacancy during the remainder of President Bush's term. Why "borrow trouble," as the southernism goes? Senator Schumer would be better served putting all that passion and vitriol to use by passing constructive legislative remedies to Supreme Court decisions. All he's doing here is setting precedents for future conservative Senates to follow. Hardly a good long-term strategy.

Lasky's second item:

Senator Arlen Specter -- a RINO (A Republican in Name Only) -- has announced that he wants to examine previous testimony given by Supreme Court justices during the nomination process to measure how closely they hewed to the positions and principles enunciated during questioning by the Senate Judiciary Panel.

That's Senator Specter's business. He can ask to see previous testimony; he can ask to see their birth certificates; he can ask to see their 5th grade report cards; he can ask to see their teeth. They are under no obligation to comply, and he is under no obligation to vote for them if they refuse to comply. That's how the advise-and-consent process works. Nothing unusual here.

But Lasky saves the best for last:

The Democrats could expand the size of the Court, and, with the presidency and congress (particularly the Senate) under their control, appoint very young Justices who would outlast administrations yet to come. A liberal, activist Supreme Court - with actuarial tables as an ally - could prolong Democratic control past Administrations and Congresses yet to come.

Now that's a novel idea. Well, not really; presidents have tried it before (the Supreme Court originally had six justices, not nine). Presidential historian Jean Edward Smith's op-ed in The New York Times, cited by Lansky, reminds us that "the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant." But in order for this strategy to work, several conditions have to be in place:

1. The American people must be relatively open to the idea. Otherwise, no legislator in a competitive district will want to support the proposal.
2. The proposal to increase the size of the Court must be accepted by a majority of legislators in both houses of Congress. Even members of the president's own party would probably be reticent to consider this idea if there could be political consequences to it.
3. The proposal must have at least 61-vote support in the Senate. Otherwise, new appointees would be filibustered indefinitely and the new seats would exist only on paper.

So, yes--if a president wants to expand the size of the Court, has support of a majority in both houses of Congress, and has support of 61 members of the U.S. Senate, it is theoretically possible to expand the size of the Supreme Court. But even in the heyday of the Bush administration, this was never a realistic goal. It would be no more realistic under a Democratic government.

This is assuming, of course, that the Supreme Court didn't do something extremely unpopular. Like, say, overturn Roe v. Wade.

See also:

• Ed Lasky, "Assault on the Judiciary" (The American Thinker)
• Jean Edward Smith, "Stacking the Court" (The New York Times)