COMMENTARY: Disrupting the majority on the Supreme Court

This should be simple, right?

We simply increase the number of justices on the U.S. Supreme Court, and then the progressives/liberals/Democrats will maintain their majority on the court, as they have, more or less, since the 1950s.

And yes, this is legally and constitutionally possible. That is because the U.S. Constitution doesn’t say how many justices there will be. Here is what it says in Article III:

“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. . .” And that’s it, other than specifying that all federal judges have lifetime appointments, or “during good behavior,” as Article III quaintly puts it.

Reid K. Beveridge

Liberals are, of course, beside themselves over the Senate’s confirmation of Justice Brett Kavanaugh. They used every play in the playbook to defeat him in the Senate. And they came close: The vote was 50-48.

The result is a conservative majority on the high court for the first time in many years. True, Justice Anthony Kennedy provided a conservative majority sometimes. But hardly always. And yes, yes, there have been Republican-appointed majorities on the court over the years. But notwithstanding the party of the appointing president, some of those Republican appointees turned out to be as liberal as their Democrat-appointed colleagues. Examples are:

• Chief Justice Earl Warren. Appointed by President Dwight D. Eisenhower in the early 1950s, Warren had been the Republican governor of California. He briefly ran for president as a “favorite son” in 1952. Appointed to the high court the following year, Warren then persuaded all of his Supreme Court colleagues to join him in the Brown v. Board of Education decision of 1954 that outlawed racial segregation in public schools. Although universally accepted as just and legally sound today, Brown was ferociously controversial at the time. Southern states fought it well into the 1960s.

• Harry Blackmun. Was appointed by President Richard M. Nixon. He was the author of the Roe v. Wade opinion that found a constitutional right of privacy as it affected abortion. It is the most controversial Supreme Court decision of this generation.

• David Souter. Souter was appointed by President George Bush (41) on the recommendation of his chief of staff, John Sununu, who had been governor of Vermont. Souter was a member of the Vermont Supreme Court. Sununu believed Souter to be conservative, but he turned out to be more liberal than most of the other justices.

• John Paul Stevens. Appointed by President Gerald Ford in 1975, Stevens might have been said as tipping the court conservative since he replaced one of the most liberal justices in court history, William O. Douglas. However, Stevens turned liberal almost immediately and then served for more than three decades. Still alive at age 98, when he retired President Obama appointed Elena Kagan to succeed him. Justice Kagan had been dean of the Harvard Law School. No change in legal or constitutional ideology there.

President Obama’s two appointments to the court are relatively young women: Kagan and Sonia Sotomayor. The other two liberals are much older: Ruth Bader Ginsburg at 85 and Steven Breyer at 80. Both President Trump’s nominees are much younger: Kavanaugh is 53 and Neil Gorsuch is 51. Hence, if either the oldest justices leaves the court, President Trump could cement a conservative majority there for 50 years (Chief Justice John Roberts, appointed 13 years ago, still is only 60).

Do the math and understand the liberal terror. With a 6-3 or 7-2 majority, all kinds of unliberal, anti-progressive things might begin to happen. Many Democratic senators howled about Roe v. Wade these past few weeks. This may be the least of their worries. Even Kavanaugh said Roe is settled law, “precedent upon precedent.” Conservative judges generally shy from overturning settled law.

So the only way to overcome this new conservative majority on the court is to add justices. This way, the Democrat liberals who believe they will defeat President Trump easily in 2020 can appoint two more liberals and flip the balance.

Only trouble is, this has been tried before. And by none other than Franklin D. Roosevelt at the height of his power in 1937. After a landslide re-election in 1936, Roosevelt proposed expanding the court. The Judicial Procedures Reform Act (bill) of 1937 would have permitted the president to appoint an additional justice for every justice over the age of 70 years, six months. Today, that would be two. Such a plan would result in six liberals and five conservatives on the court.

The Roosevelt plan went nowhere, however, even though Roosevelt had carried 46 of the then-48 states in 1936. He had overwhelming Democratic majorities in the House and Senate. And still, the bill didn’t even get a hearing in the House and Senate Judiciary Committees, much less a floor vote in either chamber. It was horrendously unpopular across the country.

There is, of course, one more way. That is to impeach Justice Kavanaugh and remove him from the court. But that would take 67 votes in the Senate. Even in the unlikely event the Democrats regain a Senate majority, it won’t be within a light year of 67.

Not to mention that no U.S. Supreme Court justice has ever been impeached and removed. Samuel Chase was impeached in the House, but not removed in 1803.

“Elections matter. I won. You lost,” President Obama told the late U.S. Sen. John McCain, R-Ariz. He’s right. The winner gets to make appointments. Not the losers.

EDITOR’S NOTE: Reid K. Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach.

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