Could the Democrats Reduce the Number of Supreme Court Justices Then Increase the Number Appointing New Justices?
The composition of the United States Supreme Court has long been a contentious issue, particularly among political parties. The possibility of the Democrats reducing the number of justices and subsequently appointing new ones is often discussed in the context of political strategy and party objectives. However, this is not as straightforward as it may seem.
Legal Constraints and Practical Challenges
One of the most significant legal constraints is the fact that Supreme Court justices are appointed for life, in accordance with Article III, Section 1 of the U.S. Constitution. This means that the only way to reduce the court's size is for justices to retire or die, after which their seats would not be refilled. The idea of removing sitting justices and then increasing the number of appointees to fill those vacancies is legally asphyxiated.
Political Power Play and Current Constraints
The Democrats' ability to reduce the Supreme Court's size is significantly hindered by their lack of control over both houses of Congress and the presidency. The necessary constitutional amendment to change the size of the court would require a supermajority in both the House of Representatives and the Senate, as well as ratification by three-fourths of the states. This is a Herculean task and currently out of reach for the Democrats.
As of the election cycle, the Democrats do not hold a majority in the Senate, and thus, they lack the political power to force any changes. Even if they were to win the presidency and both houses of Congress, they would still face the long-term process of waiting for justices to retire or die before making any changes.
Attrition and Legislative Action
The only practical method for reducing the court's size is through attrition, where vacancies are not filled as they occur. This has been a historical practice, as seen in the 1860s when the court's size was reduced from 10 to 7 to 9 justices. However, the Democrats would still need to be ready to replace retiring justices, which would require their support.
Theoretically, if the Democrats win the presidency and both houses of Congress, they could pass a law to reduce the number of Supreme Court justices. But this change would only take effect after several retirements or deaths, as justices do not leave their posts immediately. This process would be slow and would have a delayed effect on the court's composition.
Strategic Considerations and Future Scenarios
From a strategic standpoint, the Democrats might consider a different approach. They could appoint justices during their terms in office and hope to have a favorable composition when vacancies arise. This strategy would be less controversial and could provide a quicker, albeit less radical, way to alter the court's makeup.
For example, if Justice Breyer retires, and the Democratic candidates win the presidency and the Senate, they could replace him with a like-minded justice. On the other hand, if it looked likely that the Democrats would lose in 2024, they might try to reduce the court's size, preventing a Republican from filling Thomas' seat. However, if such a change were to occur, it could be reversed if the Republicans regained control of the presidency and both houses of Congress.
In conclusion, while the idea of reducing the number of Supreme Court justices and appointing new ones is intriguing, the current legal and political landscape makes such a scenario impractical. The Democrats would be better off waiting for natural attrition and appointing justices who align with their views in the meantime. Political pragmatism and strategic planning will be key in navigating the complex legal and political landscape surrounding the Supreme Court.