Court wrapping or court persuasion
Matthew T. Mangino
Recently, President Joe Biden issued an executive order creating the Presidential Commission of the Supreme Court of the United States. The president called it a bipartisan group of experts on court reform.
A White House press release suggested that the objective of the Commission “is to provide an analysis of the main arguments in the contemporary public debate for and against Supreme Court reform … including the role of the Court. in the constitutional system; the length of service and turnover of judges on the Court, the composition and size of the Court; and the selection of cases, rules and practices of the Court. “
The phrase that caught everyone’s attention was “pitch size”. It’s no secret that Democrats want to pack the Supreme Court. The term “packaging” comes from the late 1930s, when President Franklin D. Roosevelt wanted to impose restrictions on the court when he got older.
The Court Proceedings Reform Bill of 1937, commonly referred to as the “Courts Impeachment Plan”, was Roosevelt’s attempt to appoint up to six additional judges to the Supreme Court for every judge over 70 years, 6 months, who had served 10 years. or more.
According to History.com, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on its New Deal legislation.
Roosevelt’s court packing plan failed. According to Reuters, the Supreme Court has nine judges and this has not changed since 1869.
As with Roosevelt, President Biden faces an equally unsympathetic tribunal. With Judge Amy Coney Barrett’s rushed confirmation just weeks before the election, the court has a decidedly right-handed leaning with six Tories and three Progressives.
Democrats in the House of Representatives and the Senate have proposed a bill to expand the court. The authors of the bill suggest in a press release: “Nine judges may have made sense in the 19th century, when there were only nine circuits, and many of our most important federal laws – covering everything from civil rights and antitrust laws to the internet, financial regulation, healthcare, immigration and white collar crime – simply did not exist and did not require a Supreme Court ruling … having only nine judges is much lower today, when there are 13 circuits. Thirteen judges for 13 circuits is a significant improvement. “
For his part, President Biden has previously indicated that he is hesitant to expand the tribunal. Judge Stephen G. Breyer, one of the three progressive judges on the tribunal, said this week that wrapping up the tribunal would make the tribunal appear political and undermine public confidence.
Speaking recently at Harvard Law School, Breyer said that the authority of the court depends “on a confidence that the court is guided by legal principles, not politics.”
Most Americans are against filing the courts, the Senate is split 50/50, and Joe Biden is skeptical – so why create a commission to study expanding the tribunal?
A closer look at Roosevelt’s court packing plan may provide some insight. FDR’s plan to add more judges never materialized, but according to The Hill, the court’s packing plan succeeded in intimidating the Supreme Court into withdrawing from its protection of economic freedom against aspirations progressives to regulate American industry.
The court, in the wake of Roosevelt’s “failed” plan, began to act more favorably on regulations, public works programs, and other Roosevelt initiatives. As the High Court eased the pressure on FDR, the country began to extricate itself from the woes of economic decline.
Could President Biden send a message to the court? Chief Justice John Roberts did not hesitate to vote with his progressive colleagues and he has been a strong supporter of the reputation of the Court. Perhaps the President’s maneuvers on court reform are a boost to attract the attention of the Court.
Matthew T. Mangino is counsel for Luxenberg, Garbett, Kelly and George PC. His book “The Executioner’s Toll, 2010” was published by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter www.twitter.com/MatthewTMangino.