Do We Need To Expand The Supreme Court? Or Is This Another Partisan Overreach?

Are we noticing a trend? In this third installment in a series, we look at another question that is bantered about. Do we need to expand the Supreme Court? We began with a look at whether or not the Electoral College was still relevant and then moved over to another very hot topic. That subject has also found it's way into the realm of the Supreme Court as a recent ruling on the birthright citizenship debate.

All three topics have an underlying similarity and therefore some equally similar cause and effect scenarios. And all three eventually lead us as accountable citizens of America, as the adults in the room, to look inward first to see how we can be part of the solution. It's easy to point fingers of blame, and we absolutely need to ask tough questions and demand ethical, responsible activity and actions from every member of the three branches of government. But we need to accept our own role in this republic.

We'll offer both sides of the question, "Do we need to expand the Supreme Court," and also serve up a few suggestions that might be worthy of consideration. We'll also step into another favorite sound bite. "Judicial activism" becomes a talking point when looking for reaction while ignoring the other factors around issues, and offering no new suggestions.

A key in this page is where we are in this moment in history and how we want to be remembered. Guest author T.O. Illustratio allowed us to post a page about being personally remembered and the theme fits here as well.

Do We Need To Expand The Supreme Court?

Let's look at both sides of the debate to begin this section.

"Yes, we need to expand the Supreme Court and here's why:"

* We need to expand the court to offset the current conservative majority.

* Expanding to 13 seats on the court would match the current 13 federal appellate courts, thereby lessening the workload.

* Expanding the court would "restore public trust."

"No, we do not need to expand the Supreme Court and here's why:"

* This would constitute "court packing" for political advantage.

* This would lead to more justices being added by subsequent sessions of Congress or executive whim, thereby eliminating any non-partisan branch of government.

What we're seeing in our editorial room is both sides of this debate saying the same thing from partisan angles to fit their respective narratives. With respect to bullet point number two on the "yes" side, that argument about 13 seats reducing the workload is clever. The Supreme Court has absolute power now to determine their workload. The idea of 13 seats just adds ammunition to the first bullet point and that is to swing the majority in a new direction.

After this section, we'll offer three reasonable solutions to this issue. Most of the time, the answer is in the middle, with compromise, and this is a clear example. Restoring public trust will happen when we solve problems that are in front of us, for the good of the entire nation, rather than inventing problems to justify agendas.

The ideal of non-partisan has been made more difficult in these times. "The way things were at the time" has precedent in our national history. We'll give you two examples and then come back to the notion of non-partisan and judicial activism in our final section which includes a few direct suggestions to solve this question.

We're going back to the Framers of the Constitution again, just as we did in the first two pages we highlighted in the opening paragraph. The Supreme Court was set up as a neutral body to provide a checks and balances safeguard against runaway executive branch overreach, and legal review of congressional legislation to ensure alignment with the Constitution and the Bill of Rights, contained in that document.

We're writing this page based on our perspective at this moment in history. We have the advantage of 20/20 hindsight, so it's easy to call out mistakes and egregious errors from the past.

But "the way things were at the time" dictates how humans make decisions. The Supreme Court is comprised of nine humans. Congress and the executive branch are staffed by humans and all humans, ourselves included, make mistakes. The hope is that we learn from history, fix it, and get better as citizens of America.

We wrote about a Supreme Court decision from 1927 that eventually was recognized as an outrageous mistake. Thousands of innocent people were harmed by this decision that was in large part based on the way things were at the time.

In an 8-1 decision, that court sided with the notorious eugenics movement sweeping our country, led by a supposed "enlightened intellectual segment" that wanted to decide who should be allowed to have children and who was expendable. You can read about the story of Carrie Buck here.

The Chief Justice at the time was Oliver Wendall Holmes. While being on the non-partisan branch of government, Holmes like every person was swayed by personal feelings and he was a fan of eugenics and forced sterilization.

In his summary he wrote, "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover the Fallopian tubes. Three generations of imbeciles are enough."

But we don't follow that misguided notion anymore. Responsible citizens, the adults in the room decided forced sterilization wasn't right. That didn't help the early victims, but stopped it from going forward.

In our page about birthright citizenship we touched on an infamous verdict from the Supreme Court. In 1857, the way things were, brought about the Dred Scott decision and this quote from Chief Justice Roger Taney. He was referencing the part about "all men are created equal."

"[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

..it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration."

This horrendous decision was eventually overturned by the 13th and 14th Amendments. That didn't help the early victims, but stopped it from going forward.

Now back to the way it is today. We wonder why any well-qualified, well-intentioned person would subject themselves to the onslaught of personal attacks every nominee faces during Congressional interviews. Any semblance of professionalism and normal decency toward Supreme Court nominees has been discarded by both sides of the congressional aisle.  

Judicial activism by definition refers to justices acting in partisan manners outside the scope of their role, as in legislating from the bench. But the way things are now, justices are expected to align every decision along the partisan side that got them appointed. Doing otherwise opens the gateway to more personal attacks. 

Professor Mark Graber said, "Judicial activism is when the court makes rulings I do not like...I think we would all be better off if we skipped the words 'judicial activism' from our vocabulary."

The three pages in this series share a similar tone. We didn't get our way, so lets get rid of it.

Three Logical Steps

Do we need to expand the Supreme Court? Here are a few obvious steps to handle both sides of this debate. Neither side will be satisfied. That's how we know we're on the right track.

1.) Term limits for Supreme Court Justices. This one seems pretty straightforward. The positions shouldn't be for life or until such time as a member is unable to function. With a designated time of service, we invite qualified adults who seek to serve their nation as part of the essential checks and balance portion of government to administer the law and the Constitution to protect all citizens. The limit of that term is up for discussion, but with the pressure of the job, twelve to sixteen years seems like the optimal target areas.

2.) Make more effective, more transparent use of the "shadow docket" that allows for rapid decision-making. This tool was designed for immediate emergencies, but has been used far too often. Shadow docket decisions are often given with no explanation of the reasons. One of the hallmarks of the Supreme Court has always been the deliberate, patient approach to jurisprudence.

I'll admit that the lengthy majority and minority opinions in these major decisions can be a bit tedious to read depending on the author, but there are often important points presented about the overall process of the Supreme Court. We have read explanations where the justices didn't fully support this majority decision, but as a matter of law, the opposing arguments didn't provide a legal basis to support their argument or the arguments consisted of already settled decisions.

3.) This one is on us. We simply must as accountable citizens of America do a better job in nominating or even tolerating candidates for public office. Can you imagine a Supreme Court that was expanded to 13 to please the majority political operatives in power? And then in the inevitable next change of majority, to gain revenge, more justices were added? We'd end up with another version of the Congress.

We used to kind of chuckle at the shouting, and even at times, physical confrontations within the House of Commons in England. We can't do that any longer as our own Congress has been reduced to partisan clown antics and childish petulance. We simply must make better choices in who represents us in Washington.

In my state of Michigan there is an open seat in the Senate, the very body that approves or rejects Supreme Court nominees. Both of our choices are dismal options. Neither represents the embodiment of a responsible adult who seeks to support and defend our nation, along with addressing the important issues of our state.

Some of the current justices on this Supreme Court have been vilified and lambasted by the political machines whenever they make decisions they feel are legally correct based on the law, precedent, and the Constitution. They were sent to the Court as non-partisan jurists and when they do that job and it goes against a particular party, they are blasted for it. Criticism goes with the job description, but there is a line, a decency and respect line, and it has been repeatedly crossed.

Do we need to expand the Supreme Court because some operatives didn't get their way? No, we do not! We don't need to end birthright citizenship because some operatives didn't get their way. We don't need to eliminate the Electoral College because some operatives didn't get their way.

We just need more responsible adults to step forward. That begins with ourselves and then who we select to represent us. Just as the Framers envisioned.

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