Jean Edward Smith is upset that the Supreme Court has entered a "political thicket" (i.e. it's rulings are not such as Mr. Smith approves). His solution, offered in a New York Times op-ed piece, is to expand the Court's size to ten or eleven Justices so that a more liberal president could change the Court's direction without having to wait for resignations, retirements or deaths.
This is a variation on the standard liberal reaction to a stymied agenda. When the representatives of the people are not with you, then resort to the courts. If the courts are not with you then change the courts until they are. This was FDR's strategy in the 1930's, and Mr. Smith believes it has again become necessary today.
He tacitly recognizes that the vacuousness of liberal ideas persuades only the true-believers, thus those ideas, if they are to prevail, must be imposed by judicial fiat. This proposal amounts, of course, to an abrogation of representative democracy and the implementation of a judicial oligarchy.
Perhaps the biggest irony in Smith's suggestion is that he calls Roosevelt's effort to get a Court more amenable to his policies a "scheme," a "subterfuge," and "chicanery." Yet he's forthrightly proposing that the Democrats do precisely the same thing that Roosevelt did:
Roosevelt's convoluted scheme fooled no one and ultimately sank under its own weight.
Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt's subterfuge was exposed. In the Senate, the president could muster only 20 supporters.
Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.
It would be interesting to ask Mr. Smith precisely which "popular values" are being nose-thumbed by the present court. I doubt that he could answer that question. In other words, his justification for packing the Court is weaker even than FDR's
Anyway, can you imagine the caterwauling that would be echoing through the liberal press, including the NYT, if Republicans had suggested doing what Mr. Smith advises when they still controlled the Congress? Their outrage would have been volcanic.
RLC
