Amidst all the craziness and confusion regarding the allegations of attempted sexual assault by Judge Brett Kavanaugh, nominee to the Supreme Court, a familiar argument has reemerged- that the Democrats should pack the Court the next time they are in power. This time, however, supposedly-serious pundits, like Sean Davis, have started to argue that the GOP should do the same thing in order to punish Democrats for borking Kavanaugh. Like last time, I am horrified by these arguments and I now think the time has come for the country to consider a constitutional amendment to protect the Court from partisan packing. Below is my proposed 28th Amendment to the Constitution:
I. The size of the Supreme Court, except in the case of vacancies, shall be set at nine. Any change in the size of the Supreme Court shall require a 2/3 majority in Congress.
II. Should the requisite majorities be reached, the number of new or eliminated seats must be an even number.
III. Should the requisite majorities be reached, the Senate Leader of the President's main opposition party shall submit to the president a list of nominees from which the president must nominate to fill half of the new seats, subject to the advice and consent of the Senate. No justices confirmed to the new seats will be seated until the justices filling all new seats are confirmed
IV. If Congress shall vote to reduce the size of the Court, the abolished seats will draw evenly from justices nominated by presidents of each party. When an abolished seat becomes vacant, the President shall, with the advice and consent of the Senate, nominate a temporary Justice to the Supreme Court whose commission shall expire when a seat occupied by a Justice appointed by a President of the opposing party to the first seat becomes vacant.
My proposed amendment would, first of all, constitutionally codify the size of the Supreme Court, which is set by statute, but can be changed at any time. The amendment would require supermajorities in both chambers of Congress which can theoretically be reached, but are nearly impossible in practice to reach, especially on such a contentious issue.
However, it does provide an avenue for changing the size of the Court if there is a good reason to do so- one that has enough bipartisan support to merit consideration. And even if one party reaches supermajority status in both chambers, the integrity of the Court is still protected by section III of the amendment.
Section III prevents the Court from being packed for partisan reasons by preventing any shifts in balance of power that would result from adding more justices. It accomplishes this by ensuring that half of the proposed new seats be filled by justices associated with the other party. In other words, it removes the primary incentive for court-packing, which is to change the balance of power on the bench.
Finally, Section IV provides a way to reduce the number of justices, if there is a compelling reason to do so. Like Section III, however, it prevents a party from altering the size of the Court to suit political purposes by eliminating the seats of judges they do not like.
This amendment, I believe, would seriously help to eliminate the temptation both parties are facing to destroy the Court forever by packing it in a partisan manner. Violating the Norm of Nine will inevitably create an endless judicial war where each side packs the Court every time they gain power. Consequently, every election will only be about judges, and the Court’s reputation and prestige will diminish as the institution is recognized as a purely partisan body that has lost all sense of judicial independence. A constitutional amendment is the only way to prevent this, as every other norm of the nomination and confirmation process is on life support, at best.
I. The size of the Supreme Court, except in the case of vacancies, shall be set at nine. Any change in the size of the Supreme Court shall require a 2/3 majority in Congress.
II. Should the requisite majorities be reached, the number of new or eliminated seats must be an even number.
III. Should the requisite majorities be reached, the Senate Leader of the President's main opposition party shall submit to the president a list of nominees from which the president must nominate to fill half of the new seats, subject to the advice and consent of the Senate. No justices confirmed to the new seats will be seated until the justices filling all new seats are confirmed
IV. If Congress shall vote to reduce the size of the Court, the abolished seats will draw evenly from justices nominated by presidents of each party. When an abolished seat becomes vacant, the President shall, with the advice and consent of the Senate, nominate a temporary Justice to the Supreme Court whose commission shall expire when a seat occupied by a Justice appointed by a President of the opposing party to the first seat becomes vacant.
My proposed amendment would, first of all, constitutionally codify the size of the Supreme Court, which is set by statute, but can be changed at any time. The amendment would require supermajorities in both chambers of Congress which can theoretically be reached, but are nearly impossible in practice to reach, especially on such a contentious issue.
However, it does provide an avenue for changing the size of the Court if there is a good reason to do so- one that has enough bipartisan support to merit consideration. And even if one party reaches supermajority status in both chambers, the integrity of the Court is still protected by section III of the amendment.
Section III prevents the Court from being packed for partisan reasons by preventing any shifts in balance of power that would result from adding more justices. It accomplishes this by ensuring that half of the proposed new seats be filled by justices associated with the other party. In other words, it removes the primary incentive for court-packing, which is to change the balance of power on the bench.
Finally, Section IV provides a way to reduce the number of justices, if there is a compelling reason to do so. Like Section III, however, it prevents a party from altering the size of the Court to suit political purposes by eliminating the seats of judges they do not like.
This amendment, I believe, would seriously help to eliminate the temptation both parties are facing to destroy the Court forever by packing it in a partisan manner. Violating the Norm of Nine will inevitably create an endless judicial war where each side packs the Court every time they gain power. Consequently, every election will only be about judges, and the Court’s reputation and prestige will diminish as the institution is recognized as a purely partisan body that has lost all sense of judicial independence. A constitutional amendment is the only way to prevent this, as every other norm of the nomination and confirmation process is on life support, at best.
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