President Donald Trump has remade the Supreme Court, filling three seats in a single term – and if he wins again, he could fill three more given the ages of the respective current justices.
This fact alone has the left livid.
Rep. Alexandria Ocasio-Cortez, D-N.Y. demanded that Democrats “expand the court” if former Vice President Joe Biden wins the White House and the left takes control over the Senate.
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“Republicans do this because they don’t believe Dems have the stones to play hardball like they do,” she wrote on Twitter. “And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t.”
Biden has refused to commit either way, at first insisting voters would only know his position after the election.
Now, he says he’ll create a commission to “study” court reform.
“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it is getting out of whack, the way in which it’s being handled and it’s not about court-packing,” Biden said on “60 Minutes.”
Despite Biden’s attempts to play it off, Democrats will likely push one or more of three possible options:
#1) STACK THE COURT: This is just what Ocasio-Cortez and many on the far-left want… and the reality is, it’s perfectly legal even if it would shatter norms that go back a century and a half.
The Constitution doesn’t specify how many justices sit on the court… only the process for putting them there. It hasn’t always been nine, either. At various times, the Supreme Court has had as few as five and as many as 10.
In each case, the number of justices was set by legislation.
They settled on nine in 1869, and while President Franklin D. Roosevelt wanted to add six more to “stack” the court in his favor, it never happened.
But Biden also said that there are “a number of alternatives that … go well beyond packing.”
#2) MANDATORY RETIREMENT: Again, the Constitution is silent here… so some believe legislation could mandate a specific retirement age for the justices.
Progressives will likely push for 70, justifying it as the mandatory retirement age for judges in locations such as Alabama, Arkansas, Louisiana, New York, New Jersey, Maryland and about a dozen other states.
The practical effect of that would be the immediate retirement of associate justices Stephen Breyer, Clarence Thomas and Samuel Alito.
That would shift the court from a conservative 6-3 majority to one with a 5-4 liberal bent.
Associate Justice Sonia Sotomayor would be out in the election year of 2024, while Chief Justice John Roberts would follow the next year… likely making both replacements a major 2024 campaign issue.
#3) TERM LIMITS: Another option is to change it from a lifetime appointment to a single fixed term.
Two members of the current court are on record in favor of this.
The Washington Post notes that Chief Justice Roberts has previously indicated he favored a 15-year term. Interestingly, he reached 15 years on the court in September.
Associate Justice Stephen G. Breyer – who just celebrated his 26th year – has indicated he would support an 18-year term.
A 15-year term would lead to three immediate retirements: Thomas, Breyer and Roberts. That would give the Supreme Court a 5-4 liberal tilt, with Alito forced out next year to make it 6-3.
An 18-year term would lead to Thomas and Breyer forced out, leaving the court with a 5-4 conservative bench. Roberts would be out in 2023, followed by Alito in 2024, swinging the court to a 5-4 and then 6-3 liberal majority if Biden is president.
Option number one – expanding the court – would require only a change in law.
Options two and three are a little more up in the air: The Constitution doesn’t specifically assure Supreme Court justices of a lifetime appointment.
But it does say that “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,” suggesting no mechanism to remove them if they have “good behaviour.”
In other words, changing it might require an amendment to the Constitution, which has zero chance of happening.
However, the legal website Justia notes there may be another way: Supreme Court justices could be reassigned to the federal appeals court with no reduction in salary.
“Proponents point out that in the early Republic, Justices did double duty by ‘riding Circuit’ and hearing cases as lower court judges,” the website notes. “Even today, they can sit by assignment on a lower court.”
It concludes that the issue is “not clear.”
But one thing is clear: If Biden wins, all of these ideas and more will likely be put to the test in the very near future.
— Walter W. Murray is a reporter for The Horn News. He is an outspoken conservative and a survival expert, and is the author of “America’s Final Warning.”