It’s over and done. In an act of the rankest hypocrisy, the GOP senate which filibustered the moderate Supreme Court nominee put forth by the Obama Administration, has rammed through a die-hard, right-wing corporatist who values corporate profits above human life.
They have done so by ending the filibuster – a move known as the “nuclear option.” Now, the Supreme Court is stacked in favor of corporate “people” for the next 40, perhaps 50 years. We can expect that natural humans in the U.S. will continue to become more inconsequential and even disposable when weighed against corporate interests. This is not to mention that the SCOTUS will continue to chip away at all forms of progress made for women and minorities over the past decades.
That’s the bad news. Now, let us do as songwriters Jerome Kern and B.G. DeSylva suggested almost 100 years ago: “Look For The Silver Lining.” Because as grim as the prospect of a Corporate SCOTUS seems, there is cause for hope. Furthermore, we’ll be able to thank the GOP when that hope is realized.
First, it is important to understand that there is nothing in the Constitution that limits the number of Supreme Court justices to nine. The Judiciary Act of 1789, signed into law by President Washington, set the number at six; a Chief Justice and five associates. However, in 1807, Congress passed the Seventh Circuit Act, which added a seat, bringing the total to seven. Part of the reason for this change was the expansion of the nation; as new states were admitted to the Union, it became necessary to create additional judicial circuits, and Congress felt that the Supreme Court should reflect this growth. With the creation of the Tenth Circuit in 1863, representing the states of California and Oregon, the number of Supreme Court justices stood at ten.
Congress eliminated three of those seats in 1866 with the Judicial Circuits Act, reducing the number of SCOTUS seats to six through attrition. In other words there would be no replacement of justices who retired or died until only six remained. As was the case with Obama, the GOP’s motives were political, albeit perhaps more noble, back in those days. President Andrew Johnson, a Democrat who succeeded Republican Abraham Lincoln and who would shortly be the first U.S. President to face impeachment, was standing in the way of Reconstruction Acts that would revoke “black codes” in the former Confederacy and protect civil rights for newly-freed slaves. Congress wanted to make sure Johnson would be unable to nominate any additional Supreme Court justices.
The current number of SCOTUS judges was finally established at nine with the Judiciary Act of 1869. Things got very interesting during the Franklin Roosevelt Administration almost seven decades later, however. Running into Republican obstructionism to his New Deal programs, FDR threatened to add four more seats to the Supreme Court in 1937. Unfortunately, that decision was in the hands of Congress so the threat came to nothing.
There are two takeaways from this history: first, there is no legal requirement nor any historical reason why the Supreme Court – or any federal court for that matter – should have a fixed number of justices. For example, the Washington D.C. Circuit Court has 11 judges, and the infamous right-wing Fifth Circuit Court of Appeals – darling of the GOP – has 17.
Secondly, the power to expand the Supreme Court lies with Congress. This is how the GOP, in eliminating the filibuster, may very well have cut its own throat. Right now, approval of Trump and the GOP Congress is in the toilet, and grass-roots activism is at its highest levels in over forty years. Provided this momentum continues, there is a good chance that there will be big changes with next year’s mid-term elections.
You get the idea. Ending the GOP’s use of the SCOTUS as a bludgeon to ram its extremist agenda down America’s collective throats will not happen overnight, or even as the result of one election.
It will still take several years to correct the travesty of the Supreme Court’s extreme corporatist tilt. But with a new, more Progressive Congress and a President who is actually a leader and servant of We, The People rather than a self-serving buffoon, we won’t have to wait decades to restore balance to the nation’s highest court.
