America’s stock and bond markets seem to be accepting of the current SCOTUS nominee and the political controversy.
The following passage is translated from the original French work De La Démocratie en Amérique (Democracy in America), written by Alexis de Tocqueville nearly 200 years ago:
“The great difficulty was, not to devise the constitution of the Federal Government, but to find out a method of enforcing its laws. Governments have in general but two means of overcoming the opposition of the people they govern, viz., the physical force which is at their own disposal, and the moral force which they derive from the decisions of the courts of justice.
“A government which should have no other means of exacting obedience than open war must be very near its ruin, for one of two alternatives would probably occur: if its authority was small and its character temperate, it would not resort to violence till the last extremity, and it would connive at a number of partial acts of insubordination, in which the State would gradually fall into anarchy: if it was enterprising and powerful, it would perpetually have recourse to its physical strength, and would speedily degenerate into a military despotism.
“The great end of justice is to substitute the notion of right for that of violence, and to place a legal barrier between the power of the government and the use of physical force. The authority which is awarded to the intervention of a court of justice by the general opinion of mankind is so surprisingly great that it clings to the mere formalities of justice, and gives a bodily influence to the shadow of the law. The moral force which courts of justice possess renders the introduction of physical force exceedingly rare, and is very frequently substituted for it; but if the latter proves to be indispensable, its power is doubled by the association of the idea of law.
“A federal government stands in greater need of the support of judicial institutions than any other, because it is naturally weak and exposed to formidable opposition. If it were always obliged to resort to violence in the first instance, it could not fulfill its task.”
(Democracy in America, Alexis de Tocqueville, translated by Henry Reeve, 2013 edition, Simon & Brown, pp. 174–175. Dear readers: We recommend the rest of the book, available at Amazon and elsewhere: https://www.amazon.com/dp/1613824815/.)
The Supreme Court (SCOTUS) is charged with this authority and awesome responsibility. It and its acceptance by our 330 million citizens are what stands between civility and anarchy. Now we are witnessing a profound debate. How large should the Court be? Who should sit as a justice?
According to history.com, when George Washington signed the Judiciary Act of 1789 into law, he nominated just six Supreme Court justices. In the early days of the court, the number of justices was routinely changed by Congress, shifting from five under John Adams (though six justices remained seated) to nine as districts were added in the West, to ten under Abraham Lincoln as he sought an anti-slavery majority in the court, to seven, and then, in 1869, once more to nine, where the number stabilized. Franklin Roosevelt tried to “pack” the court, or expand it, in 1937. He failed. And he went about it in a devious way. The Constitution simply doesn’t say how many justices should serve on the Supreme Court but leaves that matter to Congress. Interestingly, the office of Chief Justice is mentioned only once in the Constitution, and that mention is in the Articles of Impeachment, defining the role of the Chief Justice in the impeachment of a president. (Source: “Why Do 9 Justices Serve on the Supreme Court?” https://www.history.com/news/supreme-court-justices-number-constitution. See also “George Washington’s Supreme Court nominees were confirmed in two days. Only half showed up to work on time:”https://www.washingtonpost.com/news/retropolis/wp/2018/09/03/george-washingtons-supreme-court-nominees-were-confirmed-in-two-days-only-half-showed-up-to-work/. And “This Is How FDR Tried to Pack the Supreme Court,” https://www.history.com/news/franklin-roosevelt-tried-packing-supreme-court.)
Note that federal judges have occasionally been impeached in American history – fifteen of them, to be exact. (Readers can find a list of them here: “Impeachment of federal judges,” https://ballotpedia.org/Impeachment_of_federal_judges.) Only one Supreme Court justice has ever been impeached by the House, and that was Associate Justice Samuel Chase in 1805. Chase was acquitted by the Senate (https://www.supremecourt.gov/about/faq_general.aspx).
So here we are in a presidential campaign and in the midst of filling a vacancy on the Supreme Court. And one side won’t commit to the future size of the Supreme Court after this election, while the other side tries to make potential court-packing an issue in the campaign.
Alexis de Tocqueville was born after the French Revolution, which was inspired and helped by the American Revolution. He perceived how important and critical this third branch of government is to the functioning of America. If he could grasp and delineate the critical significance the Supreme Court has for our American democracy, why can’t we fully appreciate its importance now? Sadly, the issue of packing the SCOTUS is getting only minor attention.
The method of selecting a justice is very straightforward. A president selects. A majority of the Senate confirms. That is how it is done regardless of who is president and who is in the Senate. The politics of selection, however, are fraught with supercharged emotional issues, narrowing the debate to topics such as Planned Parenthood or the Second Amendment. Of course, that focus intensifies the heat in the debate. It also distracts from the substance of a wide range of Supreme Court decisions, which is profound.
Here are a few arguments we’ve compiled that attempt to articulate many sides of the matter. We need to study these and other perspectives carefully. And we can fairly ask those running for the Senate where they stand. It would be especially welcome to see the candidates for president and vice-president have a serious discussion about the concepts underlying SCOTUS and the merits of the Court’s size and structure and history. Sadly, we didn’t see that discussion in either debate to date, and we are not likely to get it before the election.
Further reading:
“A Craving for Normalcy Spells the End of a Populist Presidency,”
“Senators treat female Supreme Court nominees differently. Here’s the evidence,”
“Why the Supreme Court must be kept at nine justices,”
“Biden says he'll reveal position on court packing 'when the election is over,'”
“Biden and the Supreme Court,”
https://www.wsj.com/articles/biden-and-the-supreme-court-11600816122
“Why Biden is stiff-arming the left on court-packing and the filibuster,”
https://www.politico.com/news/2020/09/22/biden-supreme-court-filibuster-ginsburg-419832
“Court Packing Is a Preview of a Biden Administration’s Problem with the Left,”
“Gun Control Groups Voice ‘Grave Concerns’ About Supreme Court Nominee’s Record,”
https://www.wusf.org/gun-control-groups-voice-grave-concerns-about-supreme-court-nominees-record/
David R. Kotok
Chairman of the Board & Chief Investment Officer
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