Skip to comments.Here's How Republicans Plan to Keep SCOTUS at Nine Seats
Posted on 03/20/2019 10:27:13 AM PDT by Kaslin
We've recently reported on the Democrats' intentions of trying to expand the Supreme Court in hopes of getting revenge on Mitch McConnell. The Senate Majority Leader blocked President Obama nominee Merrick Garland, who he intended to replace the late Antonin Scalia. McConnell kept the seat open for President Trump to appoint a more conservative individual. And then another after that. With the Court now clearly skewed to the right, progressives have begun to seriously consider upending the norm.
"Given the Merrick Garland situation, the question of legitimacy is one that I think we should actually talk about," Holder said earlier this month. "We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic President and a Congress that might be willing to do that.”
As Guy has noted, McConnell's Garland strategy was hardly unprecedented.
Yet, at least two people vying for the 2020 Democratic nomination, Sen. Kirsten Gillibrand (D-NY) and South Bend, Indiana mayor Pete Buttigieg, have voiced support for the plan.
Republicans plan to fight back. Legislators from both the House and the Senate are prepared to present an amendment to keep the Supreme Court status quo.
"This Thursday, I will be introducing a constitutional amendment that would limit the number of Supreme Court justices to 9 - the number of seats since 1869," Rep. Mark Green (R-TN) noted on Tuesday. "The Supreme Court must remain a fair and impartial branch of government not beholden to party. Schemes to pack the court are dangerous to the Founders' vision of an independent judiciary that serves as a check on both the Executive and Legislative branches of government."
Sen. Marco Rubio (R-FL) explained in a Fox News op-ed why he's leading the charge in the Senate.
"Court packing is quickly becoming a litmus test for 2020 Democratic candidates as this ugly, winner-take-all rhetoric gains prominence in progressive circles," he regrets.
To prevent the delegitimizing of the Supreme Court, I will introduce a constitutional amendment to keep the number of seats at nine. There is nothing magical about the number nine. It is not inherently right just because the number of seats on the Supreme Court remains unchanged since 1869. But there is something inherently good and important about preventing the further destabilization of essential institutions.
The Supreme Court as of late has made progressives worry. Just on Tuesday, the justices overturned a a Ninth Circuit Court of Appeals ruling, granting the Department of Homeland Security legal authority to detain illegal immigrants after they have been through a court hearing.
The attempt to pass this amendment will fail, since there is simply no way that 2/3 of both the House or Senate (let alone both) will pass it. However, the exercise is a good one in that it will:
1) Put the Dems on record as being for instability; and
2) Put the Dems on record as being nakedly for winning and having power at all costs.
The simple way to shut it down would be to say ... sure, lets go for 15 members of the supreme court. That would mean that President Trump gets to nominate 6 and the GOP gets to confirm all of them in the next few months ..... right?
“With the Court now clearly skewed to the right,...”
umm, no. not clearly, but this author is clearly biased.
At this point it’s theater, and nothing but theater on both sides.
It feels more and more like there are about 30 Republicans, (in the sense of conservative, constitution honoring politicians), a whole bunch of establishment Republicans, (Democrat-lite), and a hoard of Democrats, (evil incarnate).
I’m not going to obey any ruling from such a stacked court.
On top of that, Micro Rubio can take his phony amendment and his fake conservatism and stuff it up his rear end with some foam.
How ‘bout president Trump proposing to expand the SCOTUS to 15... and then he gets to name six new conservative judges. How you spose the Libtards would react to that? LOL!
If it wern’t for hypocrisy the DemWits would have no ‘crisy at all!
Did Robert's get the memo?
“The attempt to pass this amendment will fail, since there is simply no way that 2/3 of both the House or Senate (let alone both) will pass it. However, the exercise is a good one in that it will:”
Don’t be so sure about it. I can see someone like Hoyer rallying dems to vote for this. It’s clear the radicals will be against it, however it can present an opportunity to dem leadership to weed out the radicals from the party.
One thing main stream dems are scared to death over is the radical lefts grab for power. They know that before the radicals get around to destroying conservatives, they will have to consolidate power within the party.
“They’re pretty open about that already and, dare I say, proud of it. “
A way around this problem actually takes care of several problems.
The lesser of these problems is that the Supreme Court faces a huge bottleneck of cases appealed to them every year, about 7,000.
The greater problem is the 17th Amendment, the direct election of US senators, which stripped the states of a vast amount of power then given to the federal government.
The solution to both of these problems, and many others, is the creation of a “Second Court of the United States”. It would *not* be a federal court, but a court of two judges from each state, *appointed* by their state legislature, specifically without a public vote, nor by delegation by the legislature.
Their primary duty would *not* be to determine constitutionality, but *jurisdiction*. That is, are cases appealed to the SCOTUS “federal cases”, or should they be returned to the jurisdiction of the states?
This would end the foul practices of lesser federal judges either trying to make new law, or ordering their decisions to be enforced nationwide, or trying to make a “federal case” about something that should be decided at the state level.
If the 2nd COTUS does not approve of a case going to the SCOTUS, it could still be appealed there, but the SCOTUS would need to justify why they should still hear it, even though the states do not approve of this.
The other major responsibility of the 2nd COTUS would be to have original jurisdiction over lawsuits between the states and the federal government. As it is now, these cases must travel up the entire federal judicial chain, taking years but with no potential to be decided there. That is, almost always, they must go to the SCOTUS no matter what is decided.
This would mean that all the states would have their say in a spat between one or a group of states and the federal government. This would be a huge attack on the regulatory bureaucracy making endless oppressive rules with the force of law.
Congress has jurisdiction over the federal courts, a Constitutional amendment is NOT needed to expand the number of Justices.
Now with regard to Merritt Garland, the Senate had no obligation to approve his appointment.
Understand an amendment doesn’t NEED any CONGRESSIONAL INVOLVMENT!
The 2/3 is needed to propose an amendment, which then puts it to the states to ratify... is required of Congress... However an amendment can be proposed by a constitutional convention which requires 2/3 of the states to vote to hold.... So in theory you can propose amendments without any CONGRESSIONAL INVOLVEMENT WHATSOEVER.
CONGRESS CAN BE CHECKED... I am not advocating this route, and to date not a single amendment to the constitution has been introduced by this manner, but an amendment can be introduced even of the house and senate don’t want to to it.
This is the FINAL check on the government BY THE PEOPLE.
If you assume the last presidential election were a break on supporting a convention the nation is only 7% points away from being able to hold one... assuming every Trump state agreed and every Hillary state didn’t.
I don’t really advocate this route, because you are going to get all kinds of kooky amendments put out there if there ever was one, but the reality is the constitution does provide the ability to be modified without a single vote in the house or senate.
History of the number of seats on the Supreme Court
Article III of the United States Constitution does not specify the number of justices. The Judiciary Act of 1789 called for the appointment of six “judges”. Although an 1801 act would have reduced the size of the court to five members upon its next vacancy, an 1802 act promptly negated the 1801 act, legally restoring the court’s size to six members before any such vacancy occurred.
As the nation’s boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, Democrat President Jackson and congress expanded the court to nine in 1837, and ten in 1863.
At the start of the Civil War, Campbell resigned from the court to serve as a Confederate official. McLean and Daniel also died around the same time. In 1862, President Abraham Lincoln appointed Noah Haynes Swayne (the first Republican-appointed justice in history), Samuel Freeman Miller, David Davis to replace them. Lincoln also appointed Stephen Johnson Field to a newly created seat. Taney died in 1864, and Lincoln appointed Salmon P. Chase as the new Chief Justice.
Under Democrat Chief Justice Roger Taney’s leadership (Taney a Democrat appointed by Jackson), the Court in the Dred Scott case (1857) made the mistake of imagining that it could short-circuit the political debate about the power of Congress to ban slavery. Endorsing the position of the most radical states’ rights Democrats, the Court in Dred Scott held that Congress had a constitutional obligation to protect slavery in the federal territories and no power to ban it.
When Lincoln was killed in 1865, Johnson his VP who moved to the presidency was a Democrat. The Republicans in congress moved to decrease the number of seats to take away his ability to stack the court. Thus, in 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867.
In 1869, however, the Circuit Judges Act returned the number of justices to nine, where it has since remained.
President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices.
I’m very much aware that the states can bypass Congress with a Convention of the States and amend the Constitution as they see fit - and I also agree that this would not be a good idea, there being WAY to many Leftist kooks (and just plain kooks) in our political system.
That all said, I only addressed whether this particular piece of legislation would be able to pass both houses with a 2/3 majority and be forwarded on to the states in the usual way that amendments have been passed up until this point in time...with the conclusion that it wouldn’t so pass.
I read many people voted for Trump because of SCOTUS picks, including independents. The DEMOniCRATS are busy guaranteeing Trump a 2020 supermajority vote.
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