Supreme Thoughts

Supreme: 1) Highest in rank or authority; 2) Highest in degree or quality; 3) ultimate or final
–  Merriam-Webster

I recently read a fun and interesting article by Jonah Goldberg.  (Yes, I know – that Jonah Goldberg – please don’t roll your eyes and give up on me). At once randy and riveting – sending insults in many directions –  he does cite and make some interesting points.

After starting out on the topic of the weird magic of orbs, he quotes an Annandale Public Policy survey that determined 75% of American adults cannot identify all three branches of government. (Yes, I know – shocking).  And more than one-third of Americans cannot name a single right conferred by The Bill of Rights.  (As my wife and I say at this point: “And they vote.”)

It’s a good enough starting point for me, but I’ll go off into theory and conspiracy-land instead of slinging poison-dart words.

The US Constitution’s first three Articles deal with the three branches of government.  Article I – The Congress; Article II – The Executive Branch; Article III – The Judicial.

Digging into Article III, it is interesting to note that the Constitution does not – I repeat: the Constitution does NOT – set the number of Supreme Court Justices.

In fact, the number we have come to know and grow accustomed to – specifically, nine – has not always been the total number. The number is set by acts of Congress. And can be modified by acts of Congress.

When the Supremes first sat, in 1790, the odd number was six. ^[1].  Why is six odd? It is not, generally speaking, a good idea to have an even number of people deciding things.  Ties can result, and in the Supreme Court, ties lead to no action at all.  Whatever was law before is law after.

In 1807 they judiciously raised the number to seven.  In 1837 it was raised to our familiar nine (perhaps some sort of north-south compromise … I’ll have to look into it).  Oddly, in 1863 it was raised to an even ten.  [At this time the South had virtually no representation in Congress, they bolted to their own government, and it was pretty clear that the North would probably win the war. Not sure if that’s why a seat was added.]

Finally, in a fuss over President Andrew Johnson (Lincoln’s successor … remember, he was impeached and avoided getting removed from office by a single vote), the number was reduced back to seven.  This precluded Johnson, a Tennessee southerner, from appointing any judges.

Then in 1869, with Johnson out and Grant in office, the number was raised back to nine – I suppose to re-enforce the government position on Reconstruction. Or to spite Johnson.

And there, at a total of nine, is where the number of justices has remained for nearly 150 years.

Upshot #1 is that Roosevelt’s plan to “pack the court” was not the least bit unconstitutional; although it did represent the sort of power grab that was a hallmark of the his presidency.  Roosevelt believed in “go big, or go home”; he attempted to jack up the number to fifteen, thus giving himself a slam dunk on any issue before the court. Probably no other president did more to establish the tradition of a very powerful executive branch.  [After Obama, and, especially, now Trump, it looks like people in both parties have recognized this danger].

Upshot #2 is a wild long-shot prediction – or perhaps observation of the possibility – that something supremely weird could happen, most likely in 2021: Expansion of the court to 11 members, or more.

My thought process. The backlash against the Republicans for painting themselves into a corner: first with Trump, and then with Moore. These will yoke their general popularity numbers in the ditch for years – and will almost surely result in Congressional seat losses in 2018.  Even popular presidents lose seats in off-year elections (see Obama in 2010).

Unless the Reps can bump Trump and field a Knight (or Dame ^[2]) in shining armor for 2020 – or the Dems run another truly “horrible” candidate, as in 2016 – there is a good chance the Dems will hold the Whitehouse and both branches of congress come 2021.

Here’s where current events come into play.

• The Senate has gone “nuclear”. That means the good old days of needing 60% and plenty of compromise to get anything passed (used to be two-thirds) are basically gone.  No one plays nice anymore.  Could blame Harry Reid, but there’s not enough mud or ink for all the villains.  Now it takes only 50-50 (if you have the Whitehouse … the VP casts tie-breaking votes in the Senate).

[The lower house of Representatives has always been designed to go fast: only a simple majority has ever been required … except to commence the Amendment process]

• Some Supremes are destined to retire, or pass away, soon. So, look for good odds that Trump will get to appoint at least one more judge, securing the Right’s slight advantage (currently approx. 5-4, even noting that Kennedy and – in a few cases – Roberts have swung left a few times).
• Anthony Kennedy is 82. Although the left sees him as a hateful ideological enemy, he sides with them frequently and is always the “swing” vote in closely decided 5-4 cases.  He probably isn’t sure about Trump (who is?), and, as a relative moderate among right and left sharks, might be hanging on to see what happens in 2020.
• Even older is Ruth Bader Ginsberg. She is 85 years old and looks 105; her energy is visibly dwindling to all court observers.  A true Progressive/Leftist believer, she is surely hanging on, hoping that Dems win the Whitehouse in 2020.  But she could pass any day, and no one would be surprised.
• Steven Breyer, at 79-1/2 could keel over too.

If Trump gets to appoint even one more judge, look for the Left and Dems to get super energized. Even more than the hornet’s nest we are observing now. Why? This could “lock in” a perceived rightward slant for at least another decade (even though this court did uphold “Obamacare”, AKA The Affordable Care Act, and Same Sex Marriage rights).

They will seek to overturn any perceived disadvantage by adding at least two seats to the court.

That’s my Far-Out-From-the Center-Field-Peanut-Gallery prediction for now.  Call me out on it in a few years if the Dems take the elections in 2018 and 2020.

Well, the future beckons.  Let’s be careful servants out there!

Cheers and best wishes for 2018.

Joe Girard © 2018

 

[1] Actually the number was five, although Congress set the number at six.  The sixth justice was not confirmed by the Senate until a few months later.

[2] The equivalent of Knight for females is Dame. When she receives her title, she is said to be “daymed”, not “knighted.”  Link