Senate Republicans stole a Supreme Court seat from President Barack Obama. Yes, it was
lawful. But it will have long lasting consequences, including likely payback for
Republicans.
For people who despair of
Justice Kennedy’s retirement, the following history offers some solace.
In the late 1920s through mid-1930s,
a conservative bloc of justices called the Four Horsemen struck down liberal
Democratic laws. The Four Horsemen rode a car to work together to coordinate
positions and arguments. They opposed New Deal policies for unemployment and
economic recovery, and they invalidated state laws regulating labor and
business relations.
The votes this term—for example, the
anti-union 5-4 vote today in Janus v. AFSCME— resemble the votes of the Four Horsemen.
A fifth justice was a swing—but
mostly conservative—vote. He was Owen Roberts. His role was similar to that of
Justice Kennedy.
Public opinion reached a
point of frustration with the Four Horsemen. They were blocking many
progressive laws.
At that point, President
Roosevelt proposed to “pack the Court” with his nominees.
To do that, he would need a statute
from Congress to expand the Supreme Court from 9 to 15 justices. And here’s the
interesting part: The number of justices on the Court is not set by the
Constitution. It is set by a regular statute.
The Judiciary Act of 1789 set the
number at six: a chief justice and five associate justices. In 1807, Congress
increased the number of justices to seven; in 1837, the number increased to
nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial
Circuits Act, lowering the number of justices to seven. In 1869, Congress
raised the number of justices to nine, where it has stood ever since.
Back to Justice Owens: He started to vote with liberals after FDR proposed the packing plan.
The implication? If Democrats run the
table by electing a president and regaining control of the Senate, and House,
they can amend the Judiciary Act and increase the Court to 10 or 11 (or another
number).
They could argue they are taking back the seat that Republicans stole, and adding another seat as a lesson—and punishment— for stealing Obama’s chance to name a justice.
They could argue they are taking back the seat that Republicans stole, and adding another seat as a lesson—and punishment— for stealing Obama’s chance to name a justice.
It would add to the bitterness of our
politics. But we’ve had it before.
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