There Is Ample Historical Precedent For Court Reform

Jimmy Carter signed into law a bill in 1978 that increased the number of seats on the federal judiciary by 33%.

The future of the U.S. Supreme Court and the federal courts are on the ballot in November. Due to a multi-decade campaign led by the GOP and big business, a majority of the Supreme Court and the lower courts have been appointed by Republican presidents. The results of this campaign have been profound. The so-called “conservative” majority on the Supreme Court has consistently ruled in favor of the GOP, big business, the Christian right and against labor and consumers.

Since the Nixon Administration, 15 out of the last 19 Supreme Court Justices have been appointed by Republican presidents. The last Democratic president to appoint a Chief Justice was Harry Truman all the way back in 1946. This is despite the fact that the Democrats have won the popular vote in 6 out of the last 7 presidential elections.

Some of the most extreme decisions from the high court have come since the appointment of Samuel Alito in 2005 by George W. Bush. Since that appointment, the “conservatives” on the Supreme Court have opened the flood gates to secret corporate campaign contributions, neutered the Voting Rights Act and restricted the ability of unions to participate in the political process. This has tilted the political playing field in favor of the GOP and the top 1%.

The campaign of the GOP and big business to pack the courts hit its apogee (or low point) when Mitch McConnell and the Senate Republicans refused to hold any hearings or grant an up or down vote to Merrick Garland in 2016. In essence, a radicalized Senate GOP stole a Supreme Court appointment from President Obama. The confirmation of Garland represented the first chance to have a progressive majority on the Supreme Court since the early 1970s.

As a result of McConnell’s norm breaking, court reform is on the agenda of a major political party for the first time since the late 1930s. Senate Democrats are seriously considering proposals to expand the number of Supreme Court seats to 11 and to increase the number of lower court judges. This is very possible since the number of seats on all federal courts is set by statute. A simply majority vote in both houses of Congress is sufficient to change the number of federal judges.

If a President Biden and a Democratic majority Congress propose to increase the number of seats on the federal courts, the usual suspects in the GOP and the “liberal” mainstream media will cry foul and begin to invoke a lot of non-existent norms.

My first answer to these disingenuous objections is real simple: Merrick Garland. It was Mitch McConnell who blew up a bunch of norms in 2016. This is Mitch McConnell’s world and we are all living in it. We are not going to have one set of rules for Republicans and a different set of rules for Democrats. The days of playing by Republican rules are over.

The reality is that historical norms support the notion of Congress altering the number of seats on the Supreme Court and the lower federal courts. This norm dates all the way back to our Founding Fathers.

After John Adams lost the 1800 election to Thomas Jefferson and the Democratic-Republicans, a lame duck Federalist majority Congress passed the Judiciary Act of 1801 which eliminated a Supreme Court seat and created sixteen new circuit court judges. This act was aimed at maintaining Federalist control of courts after they lost the 1800 elections. After Jefferson took office, the Democratic-Republican majority in Congress repealed the Federalist’s attempted judicial power grab by passing the Judiciary Act of 1802.

The judicial wars flared up again during the Lincoln Administration. In 1863, a Republican majority Congress added a tenth seat to the Supreme Court to create a GOP appointed majority on the high court. Subsequently, the Republicans in Congress reduced the number of Supreme Court justice to seven to prevent Andrew Johnson from picking anyone new to the court. Once Grant was elected president, his Republican allies in Congress raised the number of Supreme Court seats back to nine, where it has stood ever since.

Perhaps the most famous court reform battle was in 1937 when Franklin Roosevelt attempted to increase the number of Supreme Court justices to 15. During Roosevelt’s first term, a GOP appointed majority threw out most of the New Deal on spurious legal grounds. Roosevelt’s plan was largely thwarted when one of the GOP appointees flip flopped and ruled that the minimum wage was constitutional. This was the famous “switch in time that saved nine.”

The most recent change to the federal judiciary occurred in 1978 when a Democratic majority Congress passed a bill that expanded the number of seats on the lower courts by 152 or 33%. This was one of Jimmy Carter’s unsung accomplishments.

Before Carter took office in 1977, the federal judiciary largely consisted of white males. Carter used this opportunity to appoint a record number of women and minorities to the federal bench. Approximately, 22% of his judicial picks were non white and 15% were women. Perhaps his most famous pick was when he appointed Ruth Bader Ginsburg to the powerful U.S. Court of Appeals for the D.C. Circuit in 1980.

What history teaches us is that alterations to the federal courts are a long time American historical tradition. The likes of John Adams, Thomas Jefferson, Abraham Lincoln, Ulysses Grant, Franklin Roosevelt and Jimmy Carter have all been involved in court reform efforts.

The Supreme Court and the federal courts are in need of reform because they no longer reflect the intent of the Founding Fathers and the authors of the 14th and 15th Amendments. (Historians have referred to these post-Civil War amendments as the “Second American Revolution.”) The authors of the Constitution envisioned a country in which the people ruled — not a hereditary aristocracy. That’s why they broke with King George III in 1776.

Abraham Lincoln and the supporters of the 14th and 15th Amendments believed in a nation which lived up to our ideal that “all men are created equal” as well as a multi-racial democracy.

Unfortunately, the current Supreme Court majority clearly favors big business, the top 1% and partisan and racist voter identification or suppression laws. They clearly are acting in a way contrary to our history and long time traditions. That’s why this country needs court reform in the event of a Democratic majority in 2021.

If we elect Joe Biden president along with a Democratic Congress, this country can live up to its high ideals and founding documents. We will get the change this country needs so badly. Now let’s get it done!

I’m a trial lawyer, a Democratic activist and a sports fan.