The Supreme Court on the Docket

President Biden in early April appointed a commission to consider restructuring proposals for the Supreme Court and a group of progressive lawmakers later introduced legislation to add four justices to the court’s current strength of nine.

But changing the court—which the Constitution establishes as a branch of government co-equal with Congress and the presidency—faces formidable obstacles. Here’s a look at the why, what and how of overhauling the Supreme Court.

Has the Supreme Court always had nine members?

No. The first Supreme Court, which had its initial session in 1790, consisted of a chief justice and five associates. Congress altered the number of justices six times in the 19th century. Sometimes it was done in reaction to the court’s political direction, as in 1863, during the Civil War, when President

Abraham Lincoln

appointed an extra member in a bid to neutralize a pro-Southern majority. The court has had nine members since 1869.

Why are Democrats exploring changes to the Supreme Court?

Democrats say Republicans unfairly strong-armed a conservative supermajority onto the Supreme Court when they controlled the Senate, first by refusing to hold hearings when President

Barack Obama


Merrick Garland

(now the U.S. attorney general) in March 2016, a month after the death of Justice

Antonin Scalia,

a conservative. That kept the seat open for more than a year, allowing President

Donald Trump

to appoint Justice

Neil Gorsuch,

who was confirmed in April 2017.

The Democrats’ ire redoubled in October 2020 when the GOP-controlled Senate confirmed Justice

Amy Coney Barrett

eight days before the presidential election. “Nothing is off the table,” Sen.

Chuck Schumer

of New York, now the majority leader, had warned in September as Republicans mobilized to install Justice Barrett, a conservative, to fill the seat vacated by the death of liberal Justice

Ruth Bader Ginsburg.

What do Republicans say?

They say they were acting appropriately to block Mr. Garland’s nomination and move Ms. Barrett’s through quickly, and they reject Democratic calls for change. “This is why we all run,”

Sen. Lindsey Graham

(R., S.C.), then the Judiciary Committee chairman, told fellow senators after Justice Barrett was approved with no Democratic votes.

When the GOP held the presidency and a Senate majority, it also had the good fortune to have three seats open, including that of Justice

Anthony Kennedy,

who retired in 2018 and was replaced by Justice

Brett Kavanaugh.

Securing firm conservative control of the Supreme Court, where liberals retained a durable four-seat minority for decades after their heyday in the 1950s and ’60s, fulfilled a longstanding Republican ambition.

What might be the impact of a larger Supreme Court?

By adding seats that could immediately shift the Supreme Court’s direction, or by adopting other changes that could dilute or shorten the current majority’s life, Democrats would make the court a more political institution. Any changes adopted could be used by Republicans to remake it when they next win power in Washington. Liberal Justice

Stephen Breyer

warned of such risks in a recent speech. “Structural alteration motivated by the perception of political influence can only feed that latter perception,” he said.

Where does President Biden stand?

During his campaign, Mr. Biden said in July he opposed changing the number of justices but later avoided being pinned down on the issue. In October, responding to Democrats’ anger over the Barrett nomination, Mr. Biden said he would appoint a bipartisan commission to examine potential changes to the Supreme Court. The 36-member commission he named in April is headed by former Obama White House Counsel

Bob Bauer

and Yale law professor

Cristina Rodriguez.

It includes liberal thinkers such as Laurence Tribe, a Harvard law professor whose students included Mr. Obama and Chief Justice

John Roberts,

and conservatives such as

William Baude,

a rising star at the University of Chicago Law School.

Is the commission looking only at the Supreme Court’s size?

The commission is also expected to weigh other ideas, including term limits or age caps for justices and changes in the court’s authority, rules and procedures. Rather than making recommendations, it has six months to produce what will likely be a scholarly document that could be cited to justify any potential course of action.

What are the prospects that the court will change?

Slim, in the immediate term: 60 Senate votes are needed to pass legislation, and the Democrats have only 50. Unless all those Democrats and the tie-breaker, Vice President

Kamala Harris,

agree to change that filibuster rule—an unlikely prospect—no statutory changes can advance without at least 10 Republican votes. Changes to the Constitution, which may be necessary for certain proposals, are even further out of reach. They must be approved by two-thirds of each chamber and then ratified by three-fourths of the states.

What about in the longer term?

Some proposals that scholars have long debated—such as limiting justices’ terms, which are currently life appointments, or staggering them so each president would have two appointments to make—don’t have an inherently partisan cast. Some lawmakers in both parties, knowing that no majority lasts forever, might be open to changes that stabilize and depoliticize the court.

What effect could the debate have on the court itself?

That is more inscrutable. After the Supreme Court stymied several New Deal initiatives, President

Franklin Roosevelt,

on the heels of his 1936 re-election, proposed adding seats to give progressives a majority. The so-called court-packing plan stalled in a ferocious national debate but ultimately proved unnecessary to the president’s aim: For reasons historians never have pinned down, the justices began issuing opinions more receptive to federal regulation of the national economy. It isn’t clear what consequences today’s justices might draw from the debate swirling around their court, but they are no doubt following it closely.

Write to Jess Bravin at

Copyright ©2020 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8

Source: WSJ – US News

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