Sunday, 6 Dec 2020

Opinion | The Debate Over Expanding the Supreme Court

To the Editor:

The number of justices on the Supreme Court is not fixed by the Constitution. Republicans denied President Obama his right to nominate a justice to the court using less than fair and honorable means. Joe Biden has the right to keep all his legal options open, and is trying to do what is honorable even as he sees how low his opponents go.

Democracy requires — in both political parties and in its citizens — democratic habits of the heart, a spirit of compromise, decency and fairness beyond the antics of clever lawyers. Either both sides accept such boundaries, or all limits should be off until a balance is restored.

Steve Davidson
Georgetown, Texas

To the Editor:

Republicans seem to like the idea of applying “original intent” to constitutional interpretation, so let’s step back for a minute and look at what the founding fathers actually did with the size of the Supreme Court.

From 1793 until after the Civil War, there was, as a practical matter, one Supreme Court justice designated for each judicial circuit. In 1801, for example, when Congress officially fixed the number of circuits at six, there were six justices on the Supreme Court.

After that, for more than half a century, whenever a new circuit was created, a new seat was added to the Supreme Court. Accordingly, the court went to seven seats in 1807, nine in 1837 and 10 in 1863. The size of the court was reduced after the Civil War in an attempt to limit the power of President Andrew Johnson, settling at nine justices in 1869, and the number of circuits was reset at nine.

There are now 13 judicial circuits. Expanding the court to 13 justices, therefore, would hardly be a radical departure from historical practice, but instead would be a return to the original practices adopted by the framers of the Constitution. Democrats have no reason to be shy about proposing a return to first principles and an expansion of the Supreme Court.

Lawrence Peitzman
Studio City, Calif.

To the Editor:

I hope Joe Biden will announce that his legislative priorities for his first year will be to focus on the pandemic, health care and the economy, and that he will work to build a bipartisan coalition. There have been many ideas floated about how to respond to the Republican successes in appointing and confirming right-wing judges to the courts. Increasing the number of justices on the Supreme Court is only one proposal.

Those ideas deserve a hearing but would further polarize our politics and be inconsistent with his first-year goals and legislative priorities. Therefore he should say that he will put off any consideration of those proposals until a later date.

Larry Smith
Austin, Texas

To the Editor:

There may be an easy solution to the Democrats’ court-packing dilemma. If they win the presidency and control of Congress, they can increase the number of Supreme Court seats by one and install Merrick Garland. Then when the next seat becomes vacant, they can reduce the number of justices back to nine.

That redresses the harm done by the Republicans’ unconscionable blocking of Judge Garland’s appointment without increasingly politicizing the court. I’ll bet a majority of Americans would support it.

Alex Tanford
Bloomington, Ind.
The writer is professor emeritus at the Indiana University Maurer School of Law.

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