Axne is a second-term congresswoman from a competitive district in the Midwest. In other words, she is just the kind of politician for whom a question about court-packing can land like a hot potato.
If she came out in favor of the plan, Axne, a small-business owner representing the Des Moines area and southwestern Iowa, could scare off moderate and independent voters. If she opposed court-packing, Axne’s liberal supporters could be deflated.
Of course, there’s always a third option: punting. But you need good aim to be convincing. Axne flung this hot potato far afield of the facts. Congress throughout history has changed the number of judges on the Supreme Court by legislation.
Rep. Jerrold Nadler (D-N.Y.), the chairman of the House Judiciary Committee, and other Democrats are sponsoring legislation to expand the Supreme Court from its current nine seats to 13 seats.
If the bill became law, President Biden immediately would be able to appoint four new associate justices, and those appointments could replace the court’s 6-to-3 conservative majority with a 7-to-6 liberal majority.
The plan, however, has not gotten much traction. Despite pressure from liberal activists to expand the court, House Speaker Nancy Pelosi (D-Calif.) and top Senate Democrats say they have no plans to take up the bill. Biden has appointed a commission to study various Supreme Court restructuring proposals (among them, expanding the number of justices). Its report is due near the end of 2021.
Axne may have been thinking of the Senate’s “advice and consent,” or the power to approve or reject presidential nominees for judgeships and other positions, which the House does not have.
However, to change the composition of the Supreme Court requires legislation, meaning both chambers must vote on the text of the bill and send it to the president for his signature.
A representative for Axne noted that in a later interview with MSNBC, the congresswoman said she would wait for Biden’s commission to weigh in before taking any position. We couldn’t get an answer when we asked about her erroneous comments to Iowa Public Radio as to the House’s “jurisdiction.”
“There has been a surprising degree of interest in expanding the size of the Court to include additional Justices,” law professors Daniel Epps and Ganesh Sitaraman wrote in the Yale Law Journal in 2019. “One of the virtues of this proposal is that it is almost certainly implementable by statute, as the size of the Supreme Court is not specified in the Constitution and has always been set by statute. Congress has changed the size of the Court at various times, sometimes for nakedly partisan reasons.”
The Constitution does not require a specific number of Supreme Court justices and does not explicitly say that Congress may set the number. Historians, legal scholars and congressional researchers say Congress nevertheless has the power to decide how many justices sit on the Supreme Court. (There is some debate among scholars as to whether Congress can change the number for purely political reasons, as opposed to managerial reasons such as enabling the court to better manage its caseload.)
“The Constitution does not expressly grant Congress the authority to set or modify the size of the Supreme Court,” according to a report from the nonpartisan Congressional Research Service. “Instead, Congress is understood to possess that power by virtue of the Necessary and Proper Clause, which allows Congress to legislate as needed to support the exercise of its enumerated powers and ‘all other Powers vested by th[e] Constitution in the Government of the United States,’ including those of the judicial branch. Using these powers, Congress has enacted legislation to constitute the Supreme Court and establish federal district courts, courts of appeals, and numerous courts of special jurisdiction.”
The Judiciary Act of 1789 created the first iteration of the Supreme Court, with six members. The number was modified by statute several times during the 19th century.
In 1801, Congress passed a law to reduce the high court’s membership to five members once a vacancy occurred. (This law was repealed before any seat went vacant, so the number went back to six.) In 1807, Congress increased the high court’s membership from six to seven justices when the seventh judicial circuit was created. In 1837, the court grew from seven to nine members, again, by an act of Congress.
The Supreme Court had its largest membership, 10 justices, set by statute during the Civil War under President Abraham Lincoln. An 1866 law later reduced that gradually to seven members. Finally, the court’s membership was set at nine justices in 1870 and has not been modified in more than 150 years.
Nadler and the other Democratic sponsors argue that Republicans led by Senate Minority Leader Mitch McConnell (R-Ky.) gamed the Supreme Court appointment process to the breaking point in recent years, requiring that Democrats take corrective action.
In a news release, Democratic sponsors cited the Senate Republican refusal to confirm Merrick Garland in President Barack Obama’s last year in office and then the rapid confirmation of Amy Coney Barrett just before Donald Trump was defeated in the 2020 election. “Republican appointees represent a 6-3 supermajority, and Republicans have appointed 15 of the last 19 justices to the bench,” the release said.
Other proponents of overhauling the Supreme Court favor different approaches. An attempt to pack the Supreme Court in 1937 did not work out so well for President Franklin D. Roosevelt, a Democrat who was frustrated by the court’s moves to strike down his New Deal legislation.
Epps and Sitaraman proposed two approaches that would change the Supreme Court’s membership, but not quite in the way FDR had hoped. The “Supreme Court lottery” system they proposed would do away with the concept of one fixed court and specific justices, and instead would assign a panel of random judges for each case from a “large pool of potential Justices who would also serve as judges on the U.S. courts of appeals.” The two scholars also proposed a “balanced bench” plan, in which the Supreme Court would be composed of “an equal number of Democratic- and Republican-selected Justices, plus additional Justices drawn from the circuit courts on whom the ‘partisan’ Justices would have to agree unanimously.”
“President Roosevelt’s failed court-packing plan essentially destroyed his ability to pass progressive legislation afterward,” Epps and Sitaraman wrote in 2019. “While any attempt to reform the Supreme Court will require significant political capital, nakedly partisan court-packing might be especially costly.”
The Pinocchio Test
Axne’s claim is flat-out wrong. Since the founding of the United States, the House has taken a vote each time a proposal was approved to expand or decrease the number of justices on the Supreme Court. The Senate’s “advice and consent” regarding presidential nominees is altogether a different process.
We asked how Axne made this mistake on the radio and didn’t get a response. Perhaps she misspoke, as happens in interviews every now and then. But we also asked how she would vote on the bill from Nadler and her colleagues, and didn’t get a response to that, either. Put it all together, and it appears Axne is trying to hide the ball on this issue. We award Four Pinocchios.
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