Posted on Tuesday, December 22, 2020 10:30 am Posted by Amanda Frost
Once considered taboo, packing is in court now A topic in the presidential debates, Topic a lot Opinion articles And the hashtag is popular on Twitter. Supporters of expanding the Supreme Court note that the Constitution leaves the number of judges to the discretion of Congress, and that Congress has changed the size of the court several times in the past. Critics argue that the court mobilization violates longstanding standards for judicial independence, and that expanding the size of the court now would exacerbate the politicization of the judiciary.
Several recent law review articles provide thoughtful contributions to the debate on mobilization in court. at “The packing and emptying of state courts,” Marine Levy draws lessons from the recent history of volume change status Supreme courts to inform debate about mobilization in court at the federal level. Tara Lee Groves “The Origins (and Fragility) of Judicial Independence” And Joshua Braver “Packing in Court: An American Tradition?” Each examines the court’s mobilization from a historical perspective, but draws conflicting conclusions. All three professors strive to shine the spotlight while removing the heat from what is potentially a contentious political question for months and years to come.
As Levy explains, both sides failed to discuss court mobilization in noting that the speech became a reality in state courts. Over the past decade, 20% of state legislatures have introduced bills to change the size of state supreme courts, primarily for political or ideological purposes. In recent years, Florida, South Carolina, Louisiana, Montana, Oklahoma, Washington, Alabama and Pennsylvania have all considered proposals to “pack” or “empty” the state’s highest court, but they have refused. In two states, Republican legislatures have succeeded in doing so: Arizona’s highest court was expanded from five to seven judges in 2016; That same year, the Georgia State Supreme Court grew from seven to nine justices.
State judicial systems differ in important respects from one another and from federal courts, Levy acknowledges, and so comparisons can be difficult. Most state judges do not enjoy lifetime protection and salaries equivalent to those of Article Three judges, and a large number are elected rather than appointed. However, Levy notes that in many states considering mobilization in the courts, the governor plays an important role in selecting judges and the purpose of the legislation was to give the incumbent governor the power to change the ideological composition of the state’s highest court. Levy argues that all this statewide activity indicates that “the rule against mobilization in court may be more weak than some believe.”
However, Levy recognizes that the lessons learned from state courts are mixed. Attempts to resize the state’s highest court have failed far more than they succeeded, and thus may be a “cautionary tale” indicating that political capital is better spent in other areas. Alternatively, some proposals to expand the size of the state’s top courts may be a shot at the front, putting pressure on these courts to align behind the political party that has the power to alter their composition. Likewise, the current debate about expanding the size of the US Supreme Court may have an impact on justices even if it does not become a reality.
The Grove 2018 article argues that practices now considered off limits, including mobilization in court, were once understood “not only as constitutionally permissible but also desirable (and politically applicable) methods of” examining “the judiciary. Grove explains that Congress changed the size of the Supreme Court several times in the past, and argues that this practice was viewed within the parameters of mainstream political discourse until the 1950s. In a wise conclusion, she declared that the mobilization in court and other challenges to judicial independence are dormant, but not dead, and she cites this history as “a cautionary tale about the fragility of judicial independence.”
Facing Grove, Braver examines the same history to conclude that mobilization in court was never an acceptable practice. He acknowledges that the size of the court changed seven times between 1801 and 1869. But he argues that the court mobilization – which he defines as “basically manipulating the size of the Supreme Court to alter the court’s ideological composition” – has only succeeded once.
According to Braver, the first few changes to the size of the court were not to change the court’s ideological make-up in the first place, but were necessary by riding the circuit – a now-defunct practice requiring judges to travel to regions of the country for double duty. As judges in the newly established lower circuit courts. With the addition of new states to the union, new judges were added to the court to employ the courts of the expanded circuit.
Mobilization in court, as Braver defines it, first succeeded during Reconstruction, when Republicans reduced the size of the court to seven justices to deny President Andrew Johnson the opportunity to fill vacant seats, but in 1869 he restored it to nine after the president. Ulysses S. Grant post. President Franklin Delano Roosevelt infamously tried to expand the court from nine to 15 justices in 1937 and failed to do so. Despite the resounding defeat, however, his efforts It can be said that she was affected Judge Owen Roberts votes to support Roosevelt’s New Deal legislation in what has become known as “The Transformation In Time That Saved Nine”. This effort marked the final attempt to change the size of the court through legislation. Braver concludes that changing the size of the court for political purposes is nearly unprecedented, and thus the practice should not be “normalization”[ed]Today with reference to this misunderstood past.
Strangely enough, however, Braver did not include in his analysis the Senate’s refusal in 2016 to confirm which Supreme Court candidate during President Barack Obama’s final year in office. Like the example of the Reconstruction era, this decision effectively reduced the size of the court for more than a year before it was re-expanded with Judge Neil Gorsuch’s confirmation in April 2017, and appears to meet Braver’s own definition of court mobilization as a change in court size for primarily ideological purposes. If mobilization in the ideological court is as rare as Braver suggests, then this recent example is of greater importance in the debate about its future.
Levy, Grove and Braver all agree that mobilization in court is no longer “out of the question,” as it was only a few years ago, and they all worry that mobilization in court could undermine the independence of the judiciary. But the real significance of their scholarships is to show that at the state and federal levels, mobilization in court has really returned.
Academic Spotlight: Past, Present, and Future of Court Mobilization,
Scotus Blog (December 22, 2020, 10:30 am), https://www.scotusblog.com/2020/12/academic-highlight-the-past-present-and-future-of-court-packing/