Army Bob: Should we allow packing Supreme Court?

by Robert M. Traxer

The Supreme Court dealt a blow to the current administration when it struck down the COVID-19 vaccine mandate for all businesses with more than 100 employees to require COVID-19 vaccinations and boosters as a condition of remaining employed.

Well no kidding!

The White House Chief of Staff Ronald Allen Kalin, called the requirement a “work around.” Working around what, you ask? The law and the Constitution of the United States of America.

The government has gone extra-Constitutional before; President Abraham Lincoln did it during the Civil War with regularity, and when the Supreme Court objected, he merely ignored them. He even contemplated arresting the Justices. Presidents Roosevelt and Wilson did it before and during World Wars One and Two. 

The composition of the Supreme Court is right of center today, but attempts have been and will be made to change it; indeed, the “packing” of the court is a hot political issue. The movement aims to add new members to achieve a majority who follow the current congressional and presidential political philosophy.

President Franklin Roosevelt made a concerted effort to change the court with the Judicial Procedures Reform Bill of 1937. It would have added a new member for every justice who reached the age of 70 and did not retire. The plan became known as “the Court Packing Plan” and though the President was elected in a landslide, the Congress and public were against the concept. Even President Roosevelt’s Vice President, Nance Garner, opposed it, along with many conservative Democrats who held the bill in committee for nearly five months.   

The Constitution is mute on the power of the court to interpret the document; strangely, the court gave itself that power in Mulberry v. Madison in 1803, and most Americans believe it is a proper function of the court. Our founding document also allows Congress to set the number of justices.

The first Judiciary Act of 1789 sets the number at six, a chief justice and five associate justices. In 1869 it was expanded to nine, but from 1790 to 1869 it fluctuated from six to arguably ten. The reason cited for increasing the number of Associate Justices was a growing oversight workload with the addition of new states and lower federal courts. However, the true reason was to install a majority who supported the current president and congress.

The danger of an all-powerful Supreme Court is that if a party or philosophy gains the White House and Congress, it can “pack” the court at will and go extra-Constitutional. The nation was founded without political parties; President George Washington warned of the extreme danger of parties, and the hyper partisanship seen today may prove him correct.

When President Joe Biden referred to “Trump voters” as domestic terrorists it was troubling, and it goes to the depth of what is the politically correct disdain for others’ opinions in our current environment. History has seen political parties that had liberal Republicans and conservative Democrats; today nothing divides the nation like abortion, with pro-life Democrats are as rare as pro-choice Republicans. Both parties have seen a strong move toward a set of litmus tests unheard of in our history; abortion, federal oversight/overreach, race and crime are among them. Even the greatest issue in our history, slavery, saw liberal anti-slavery Democrats in President Lincoln’s Republican government. 

It is time to either limit the role of the Supreme Court or pass a constitutional amendment that sets the number of justices and the powers of the court in stone as we did with abolition, prohibition/allowing alcohol, gun rights, speech, term limits and more. Nothing short of a constitutional amendment will suffice. Anything less is subject to political fluctuations and what is politically correct with the philosophy of the party in power at the time, our Constitution be damned.

My opinion.