Judges,  U.S. Supreme Court

Did You Learn about FDR’s “Court-Packing” Plan in Your Constitutional Law Class?

If so, you might want to dust off your notes, in case Marshall University Political Science Professor Jean Edward Smith shows any prescience in his New York Times Op-Ed piece, “Stacking the Court,” which I ran across via the Wall Street Journal Law Blog.

Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes:

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.

But as a commenter on the WSJ post notes about the piece (lots of comments there, by the way),

It’s a nice history lesson, but every change to the number of justices happened over 150 years ago, and both in times of true national upheaval–the new nation and then the civil war. Even the depression wasn’t sufficient for FDR to change the number.

I wonder if Professor Smith’s piece is a serious enough argument for SCOTUSBlog to chime in with something substantive. Right now, they only link to it in a “Round-Up” post, but you might want to check it out for its links to several other articles regarding distress over the Court’s direction.

Lots of discussion over at The Volokh Conspiracy, too, including this one:

Among a great many other questions, I was hoping [Smith] would explain why a series of controversial 6-5 decisions would be clearer or more persuasive than a series of controversial 5-4 decisions. But nope. Oh well.

Court packing could even become popular. Once the initial resistance is overcome, there will be more packing with each change of power as citizens not only get used to it but demand it as a perk of winning the last election. A hundred years from now, maybe we’ll see an article in the New York Times begin with “A bitterly divided U.S. Supreme Court, in a 76-75 decision . . .”

OK, that’s a little cynical.

I suspect there’s going to be a lot more posted about this.

UPDATE (7/27/07): And there is.

University of Wisconsin Law Professor Ann Althouse has lots to say and tons of comments from readers.

Prawfsblog has a few comments.

The Blog of Legal Times notes a sense of “buyer’s remorse” in the senate over the confirmation of Justice Alito and Chief Justice Roberts. Senator Specter is said to be examining their testimony before the Senate to see if their conduct on the bench squares with what they testified to as their views on stare decisis. According to BLT:

The review is designed to improve the confirmation hearing process, in particular what may be done to goose nominees into giving more substantive answers to questions. In recent years the hearings have largely become a process of avoidance, with nominees seeking to say as little as possible without scuttling their prospects for confirmation. Specter and fellow Judiciary Committee member Dick Durbin (D-Ill.) are searching for ways to make the hearings more probative.

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