Presidents may want to ‘pack’ the Supreme Court, but most Americans say ‘no’ | Opinion

Editor’s note: This is a regular feature on issues related to the Constitution and civics written by Paul G. Summers, retired judge and state attorney general.

In this fifteenth column, we conclude our study of Article III, the Judicial Branch. We have one Supreme Court, and such inferior courts “as the Congress May from time to time ordain and establish.”

The Constitution is the supreme law of our land. Our forefathers created three equal branches – two were political, the legislative and executive branches. Decisions are made based on politics, policies and polls.

The third federal branch, the judiciary, is not political. Judges decide based on the law and  constitution, not on emotion or popular sentiment.

Once a judge is confirmed by the Senate, he or she has a lifetime appointment. They do not run for office every two, four or six years; they follow the Constitution. The Supreme Court is “the court of last resort”; the decision by the Court is final and subject to no appeal.

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How large should the Supreme Court be?

The judiciary affects each one of us. Please remember that the judicial branch is not political like the other two. That’s the crown jewel of a constitutional republic, the United States. The judicial branch acts as a check and balance against abuse of power by the other branches.

Supreme Court Chief Justice John Roberts, center, and Justice Stephen Breyer arrive for the State of the Union address by President Joe Biden to a joint session of Congress in the U.S. Capitol House Chamber on March 1, 2022.

We have challenges daily in our country.

There is one issue around which a broad, nonpartisan majority of Americans can agree:  “The Supreme Court of the United States shall be composed of nine Justices.”

That is language of the  proposed “Keep Nine” Amendment to the United States Constitution. It would permanently preserve the Court’s independence; promote the Rule of Law; and preserve checks and balances on abuse of power.

The Constitution is silent on the size of the Supreme Court. Without an amendment setting the number of Justices, a future Congress and president (regardless of party) could change that number for political advantage. This strategy is known as “Court packing.”

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Polling shows that by more than a 2-1 margin, voters would support the “Keep Nine” Amendment. Support among moderates and independents is overwhelming.

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Politicians like court packing, but not the people

Both political parties, at times, have promoted “Court packing.” Some suggest that a president with a majority in Congress might do that which Franklin Delano Roosevelt (FDR) famously attempted, but failed, when he tried to pack the Supreme Court in 1937.

President Franklin D. Roosevelt takes his third term oath of office at the Capitol in Washington, Jan. 20, 1941. The oath is being administered by Chief Justice Charles Evans Hughes, left, Charles Elmore Cropley, clerk of the Supreme Court, next to the chief justice, is holding the bible. To the left of the president is his personal aide, Thomas Qualters, and James Roosevelt, in the uniform of a Marine Corps captain, is at far right. (AP Photo)

FDR sought to increase the number of Supreme Court justices and then allegedly fill those new positions with ideological allies. FDR’s plan was rejected by the American people and Congress.

Nine Justices have served the U.S. for 154 years, since 1869.

“Court packing” would be a disaster for the nation and any party that embraced it. If one party packed the court, another party with a new majority would retaliate by packing the court again.  This political “table tennis” undermines both checks and balances of the court and the rule of law. Americans desire a nonpartisan, independent judiciary.

Our next column studies Article IV.  Reading the Constitution is time well spent.

Paul G. Summers, a lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee.  Raised in Fayette County, he resides in Holladay and Nashville.

This article originally appeared on Nashville Tennessean: Judiciary: Americans disagree with plans to ‘pack’ the Supreme Court