How Democrats Could Increase the Number of U.S. Supreme Court Justices

With less than eighteen days of the US presidential election on November 3, the battle to replace US Supreme Court judge Ruth Bader Ginsburg (“RBG”), who died on September 18, rushed on Thursday. October.

After four days of hearings with Amy Coney Barrett, the candidate proposed by Donald Trump to replace “RBG”, the Republicans have announced their intention to speed up the process: the Senate Justice Committee has set Thursday, October 22, a preliminary vote on the judge’s appointment, despite Democrats’ objections. Mitch McConnell, the Republican majority leader in the Upper House, did not specify when he next wanted to convene the Senate, where Republicans have a majority (53 elected to 47) for the final confirmation vote, but it could be held on October 27, a week before the election.

Donald Trump had indeed set the roadmap for the Senate, asking him to confirm the appointment of Mr.^me Barrett, before the election, arguing that the Supreme Court might have to decide the result of the poll.

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  Democrats’ options

Failing to be able to prevent this confirmation that they judge “Illegitimate” so close to november 3, the democrats are looking for a way to restore a balance within this jurisdiction in the event of victory at the polls. Hours after the Republicans’ announcement, Joe Biden announced that he would take a stand, before November 3, on a controversial left-wing Democratic Party proposal to add additional Supreme Court seats to counter the influence of judges chosen by Donald Trump.

During the Democratic primary, the candidate had yet ruled out this option, but he is forced to compose. “It’s not just about expansion, it’s about depoliticizing the Supreme Court”, said Massachusetts Senator Elizabeth Warren in 2019. Pete Buttigieg, for his part, proposed a Supreme Court composed of fifteen members, five of whom would be appointed by the Democrats, five by the Republicans and the other five by unanimous agreement of the top ten. Mr. Buttigieg also hypothesized to limit the term of office of judges rather than appointing them for life.

The disappearance of “RBG” rekindled the debate: “We must put all the options on the table, including the number of seats on the Supreme Court”, launched at the end of September, Alexandria Ocasio-Cortez, the rising star of the left wing of the party, supported by Chuck Schumer, the leader of the Democratic group in the Senate.

• Republican outcry

These calls immediately sparked an outcry from Republicans. Senator Mike Lee notably denounced an instrumentalisation of the Court “For political purposes” and warned against the risk of overbidding. The Supreme Court “Will end up looking like the Senate in ‘Star Wars’, with hundreds of people on its benches. It will lose all legitimacy ”, he said.

Americans seem just as cautious: 46% are “Opposites” to the creation of new seats and only 21% favorable, according to a YouGov poll. A third of Democrats support this project. No doubt they remember the failure of Franklin Delano Roosevelt in 1937.

• It’s the Congress that decides

In a column published by the Washington postUniversity of Chicago law professor Daniel Hemel suggests Joe Biden should follow the left wing’s proposal. On condition of winning the majority in the Senate on November 3. Indeed, the composition of the Supreme Court is the responsibility of Congress, as the Court recalls on its website without further clarification: “The Constitution gives Congress the power to determine the number of judges. The first law on the judiciary, passed in 1789, fixed the number of judges at six, a chief judge and five associates. Over the years, Congress has passed various laws to change this number, which has fluctuated between five and ten. The Judiciary Act of 1869 fixed the number of judges at nine and no subsequent change in the number of judges occurred. “

The French Constitutional Council, in an article devoted to the Supreme Court, reviews these fluctuations and recalls that in 1937 President Roosevelt proposed to Congress to pass a law – the Court-Packing Plan – which would have authorized the appointment of an additional judge for each judge remaining in office beyond 70 years, with a maximum limit of fifteen judges to the Court.

The political battle which allowed this proposal to fail had for “Paradoxical result of sanctifying in public opinion the number 9 and giving an almost sacred character to the institution of a Court composed of nine judges”, writes the Constitutional Council.

“Nine seems like a good number. It’s been like this for a long time. I think President Franklin Roosevelt’s idea was not a good one ”, confirmed Ruth Bader Ginsburg in 2019, in an interview with NPR. Ultimately, Daniel Hemel believes that the specter of legislating on the composition of the court should be considered as “A nuclear option” : it’s useful to own it, scary to use it.