Journal Entries #8

Court Packing? The late Justice Antonin Scalia used to deny that the court was political. Justices rendered impartial decisions to the best of their ability. Others argued that the court was as political as the pope is Catholic.

As noted, justices debate among themselves and with law clerks, lobby each other, and try to build consensus for a majority opinion. Those left out can file concurring opinions (supporting the result, but for different legal reasoning) or dissents when they object to the decisions. Dissents can later form the basis for new decisions, but given the court's reliance on precedent (previous cases), that is a less frequent occurrence.

As we said, concerns about the partisanship of the court has reached new levels with the polarization in the American Political System. Senate confirmation of justices can be ugly affairs. Consider the contentious fight over Justice Kavanaugh in 2018. Republicans refused to consider President Obama's nomination of Merrick Garland, a moderate to the high court in 2016 because it was near the end of Obama's term. But in early 2020 they expressed a willingness to approve a late-term choice by President Trump if Justice Ginsburg's health issues led to her retirement. When Justice Ginsburg died in September 2020, the Republican Senate was able to push through confirmation of Amy Coney Barrett, despite being a few weeks before the election.

Justices try to time retirements to make sure they are replaced by someone ideologically compatible. Even if the justices attempt to be not overtly partisan, the appointment and confirmation process is heavily politicized and polarized.

Is there better way?

Democrats want to increase the size of the high court in order to offset the conservative majority by creating room for them to appoint additional liberal justices. Here a Harvard Law professor takes a historical perspective to argue Links to an external site.that he understands why Democrats would want to make a change, but also that there are risks. It brings to mind Democratic President Franklin D. Roosevelt's failed court packing plan of the 1930s during the Great Depression. Conservative justices had invalidated many of his New Deal programs to solve the depression. The justices did reverse course and uphold many New Deal laws, so the threat may have had an impact on the court. Still the effort has been politically controversial for years. In Why We're Polarized in the final chapter, Ezra Klein mentions an interesting idea that would increase the size of the court from 9 to 15 while also balancing and depolarizing the court. Two law professors advocate Links to an external site.5 Republican appointments and 5 Democratic appointments. Those 10 justices must then have full consensus on choosing five additional justices in the hope that consensus would result in moderate picks from among widely respected judges and lawyers.

Of course as my constitutional law professor used to say there are no guarantees where a justice might land once they have a lifetime appointment. Sandra Day O'Connor appointed by the conservative President Ronald Reagan turned out to be a reliable moderate swing vote on many issues as Gorsuch and Roberts have been less often today.

What do you think of the balanced and depolarized court option? This is a possible topic to consider as a part of your final semester assignment.