| UPDATE: See In Her Own Words, Justice Ruth Bader Ginsburg Opposed Partisan Court Packing (Increasing Number of Justices) Now Advocated By Mayor Garcia
(Sept. 20, 2020, 5:11 p.m.) -- Writing on his personal Twitter page, Long Beach Mayor Robert Garcia has advocated the historically disfavored political "packing" of the U.S. Supreme Court by increasing its number Justices if the U.S. Senate votes on a Justice nominated by President Trump.
The number of Suprme Court Justices is determined by federal law, not the constitution. To increase the number of justices/pack the Court would require the following in November 2020: Democrats would have to retain control of the House and gain majority control of the U.S. Senate and win the White House.. The current Senate -- with slim Republican majority -- remains in office until Jan. 3, 2021. Thus far, two Republican Senators have signaled they oppose taking up a Supreme Court nominee prior to the Nov. 2020 election. Sen. Susan Collins of Maine opposes a Senate vote on a nominee before the Nov 2020 election (in which Collins in a tough re-election fight.) Sen. Lisa Murkowski of Alaska has likewise indicated she opposes taking up a nominee before the November 2020 election (Murkowski is next up for re-election in 2022.) Dem presidential candidate Biden has previously pledged to put an African-American woman on the Supreme Court. President Trump has said his upcoming Supreme Court nominee will be a woman. [Scroll down for further.] |
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>Packing the Supreme Court with additional Justices, attempted by FDR in 1937 (after the Court struck down some New Deal legislation) was rejected at the time by FDR's fellow Democrats and more recently in 2018. Opponents cited the risk of letting a party temporarily controlling Congress and the White House turn the Supreme Court into a political tool for upholding whatever laws or actions the controlling party wants upheld. Garcia's pro-Court expansion stance isn't advocated by Democrat presidential candidate Joe Biden and wasn't advocated by Justice Bade Ginsberg herself. In a statement dictated to her granddaughter just days before her death, Justice Bader Ginsberg said: "My most fervent wish is that I will not be replaced until a new president is installed" and didn't advocate increasing the number of Court Justices if that didn't happen. Democrat Presidential candidate Biden said today (Sept. 20) the Senate should vote on the Supreme Court nominee of whoever wins in November. (In July 2019, Biden opposed packing the Court saying "we'll live to rue that day" if the Court is expanded. Senator Bernie Sanders has also previously said he doesn't want to pack the court.) The Washington Post offers its current compiltation of where Dems stand at this link.
In addition to Mayor Garcia, former South Bend Indiana Mayor/former Dem Presidential candidate Pete Buttigieg supported increasing the number of Supreme Court justices as have other public figures who argue that the importance of the issues now at stakes coupled with Republicans' 2016 action in withholding a vote on President Obama's 2016 Supreme Court nominee justify court packing in response. A Sept. 18 LA Times op-ed by UC Berkeley Law School Dean Erwin Chemerinsky (a former ACLU lawyer as was Bader Ginsberg in separate years) offered such justifications.
But opponents warn of the long-term consequences for protective check and balance. Writing in Reason magazine at this link, Professor of Law Ilya Somin of George Mason University states: If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance. The predictable result will not only be a loss of "credibility" for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government. If the president can pack the court any time his or her party controls both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact. In 1937, Democrat Senator Burton Wheeler spoke in opposition to FDR's plan Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.
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