in 2020 Presidential Election, Democrats, Supreme Court
Democratic Senator Ron Wyden of Oregon has introduced legislation to, as he says, “reform” the Supreme Court, and the federal courts in general. The bill is titled the “Judicial Modernization and Transparency Act.”
Democrats have been threatening to pack the Supreme Court for a while, but that is not this bill. Wyden’s bill expands the Court to 15 justices, but not all at once: the next six will be appointed over the next three presidential terms, with presidents getting two nominations per term.
Is that a terrible idea? Not necessarily. The number of justices is not prescribed in the Constitution and has varied from time time, although it has been fixed at nine for a long while. It is impossible to say, at this point, whether Republicans or Democrats are more likely to occupy the White House over the next twelve years. I would say, though, that the size of the Court is not broken and does not need to be fixed.
What else does the bill do? Most of its text is devoted to a procedure that results in all Supreme Court justices’ tax returns being made public. Again, this is not necessarily a bad idea. My response would be, You first. After Congress passes a law requiring disclosure of all tax returns of House and Senate members, then it can move on to the Court.
The most questionable aspect of Wyden’s bill is its attempt to limit the power of the federal courts to hold Congressional acts unconstitutional. The bill says that a two-thirds majority of the Supreme Court is necessary to find a law unconstitutional, and a unanimous vote of a Court of Appeals panel. I am not sure what motivates this. Liberals and conservatives are about equally likely to think that a particular law is unconstitutional, depending on what it says. Certainly the Democrats were eager to have laws against abortion and sodomy, to name just two examples, overturned. This provision seems aimed rather spitefully at the present composition of the Court.
More fundamentally, the two-thirds requirement seems plainly unconstitutional. Under Marbury v. Madison, “[I]t is emphatically the province and duty of the judicial department to say what the law is,” and “[a] Law repugnant to the Constitution is void.” Does Congress have the authority to limit an equal branch’s power to carry out what that branch sees as its constitutional duty? Unless I am missing something, the answer is clearly No.
This bill purports to require a two-thirds majority to declare an act of Congress (not, apparently, a state law) unconstitutional. What if Congress purported to require a unanimous decision of the Court for such a ruling? There is no way any Supreme Court would view an attempt by Congress to limit its ability to issue rulings on constitutional questions as permissible.
The bill also expands the federal district courts and courts of appeals in a manner that is not particularly controversial, and has a few other miscellaneous provisions.
So what is going on here? The explanation is entirely political. The Democrats would love to pack the Court, as long as they hold the White House. But Court packing is unpopular, and if they actually tried it the voter blowback would be overwhelming.
Instead, they have focused on attacking the Supreme Court on ideological as well as fictitious “ethical” grounds. Their attacks have worked, as the Court’s approval with voters has dropped sharply. Wyden’s bill is just one more opportunity to promote the idea that the Supreme Court is ethically challenged and in need of reform, and is too “activist” and needs to be reined in. It won’t pass, but it may help to keep the Democrats’ anti-Court campaign alive.
https://www.powerlineblog.com/archives/2024/09/reform-the-supreme-court.php
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