How To Think About Packing the Supreme Court

Just a short comment this time, offering two simple observations. In the aftermath of the McConnell scandal in which Republicans violated their Constitutional obligation to "advise and consent" and the failure of Ruth Bader Ginsberg to retire during the Obama administration, the SCOTUS is now more brazenly partisan than it has been in many decades - perhaps ever. Given the lifetime appointments of the three new and young Drumpf Justices, a "debate" about whether or not to "pack the court" - ie, to alter the size of the court to appoint politically favorable judges - is now underway. But is the debate at all meaningful?

Theh first issue raised was of course the reciprocity problem: if the Democrats packed the court now, what's to stop Republicans from doing it in future?

Now the function of any honest debate is to shed light on the issues surrounding a topic and to find a reasonable solution. On this basis it's clear that the "topic" of the reciprocity problem is not the function of the court, but the political consequences of action. It is therefore a dishonest "debate". The actual topic at hand is the function of the Supreme Court and how best to implement it. The Constitution says this about that:

Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Of note is the fact that lifetime appointments are not specified, nor is the number of Justices. What is clear however is that the range of responsibilities given the SCOTUS is wide indeed.

The Supreme Court was founded in the Constiution but established and ordained by Congress which, in the Judiciary Act of 1789, declared the Court to consist of a single Chief Justice and five additional justices. These six Justices were charged with among other things appellate jurisdiction over all cases involving US citizens. There were some four million citizens in 1789, which is roughly the size of metro Los Angeles today. Six justices representing 4,000,000 citizens comes to a ratio of 1 Justice to about 670,000 citizens. In 1894 the Court was expanded to its present nine Justices, and the population had grown to some 63,000,000 by 1890. That created a proportion of 7,000,000 citizens to each justice, affording each American just 1/10th the representation on the SCOTUS that it had enjoyed in 1789. Today of course there are still nine Justices, but with roughly 330,000,000 citizens, bringing the ratio to one Justice for every 37,000,000 or so citizens, bringing today's representation to less than 1/50th of what it was during George Washington's last presidency.

Today, fully one third of the Surpreme Court was appointed by the least popular president in American history. The Court has never enjoyed so much power as it does today, and never has it been less accountable to or representative of the American people. Administrations could pack the Court for literally decades and not likely reach the ratio of 1789.

Let the packing begin, I say.