One of the things I love about the United States Constitution is that it is a living document, but its life is breathed into it not by some magic power to change its meaning, or change the meaning of the words in its text, as leftists do, but by the rules laid down within it, we have the ability to amend it, or replace it altogether, through the amendment and convention processes, respectively. These are quite difficult and potentially dangerous processes, but this is why progressives have used dishonest means to change the impact of the Constitution on law. They figure that the best way to get what they want is to place justices on the court who will undo the meaning of the Constitution. The recent Supreme Court decision has left strict constructionists in a bit of a quandary: Here we have a wayward element within the court, the Chief Justice, no less, and it seems we’re to be stuck with him, probably for a long, long time. What most people don’t realize about the Court, however, is that its size and most of the rules determining its power are set by Congress, and that the Constitution gives Congress said power. There is a way to fix the court, but it would require a Congress with guts. Imagine that such a creature were to exist. What could Congress do to repair the Court?
Most people don’t study the Constitution, never mind history, so they’re unaware that Congress has the power to set the number of justices on the Supreme Court. There is nothing locking us into the number nine, and there is nothing sacred about it. As a cost-saving measure, since we now have another mindless entitlement program for which to pay, Congress could reduce that number to seven. The Congress could apply the LIFO(Last In-First Out) rule to determine who stays. This would lop off Kagan and Sotomayor, they having most recently joined the court. In a punitive mood? Want further cost savings? We could make that number three, and by applying the LIFO rule, this would leave us with Justices Scalia, Kennedy, and Thomas. I would like to know which of you conservatives wouldn’t favor that?
In 1937, the New Deal was getting hammered in the Court. President Roosevelt’s agenda was running into resistance much as Obama’s has encountered conservative resistance these days, but with a two differences: He owned both houses of Congress, but the Supreme Court at the time was busily overturning vast portions of the New Deal. FDR’s plan was to push his agenda through by increasing the number of justices on the court until he had a liberal ruling majority. The Senate cried foul, and momentarily, and FDR’s plan was halted. He naturally found another manner to accomplish his ends, and it was to sweeten the retirement pot for Supreme Court justices, inducing some of the older members to retire, and after the passage of the Supreme Court Retirement Act. This ultimately led to the rapid retirements of several members, FDR made his appointments, and then the New Deal began to be upheld. (The Retirement Act permitted Supreme Court Justices to retire with 100% of their last salary.)
The Supreme Court was not always composed of nine members. For the record, and thanks to Wikipedia for having it condensed into this form:
Congress organized the Court that year with the passage of the Judiciary Act of 1789. It specified the Court’s original and appellate jurisdiction, created thirteen judicial districts, and fixed the number of justices at six (one Chief Justice and five Associate Justices).
Since the passage of the Judiciary Act, Congress has occasionally altered the size of the Supreme Court, historically in response to the country’s own expansion in size. Membership was decreased in 1801 to five, then increased to seven members in 1807, to nine in 1837, and to ten in 1863. It was then reduced to seven in 1866. In 1869, Congress set the Court’s size to nine members, where it has remained since.
As you can see, there were quite a number of modifications, but the salient point is that there is nothing sacred about the number nine(9). It could just as easily be three(3), or even one(1).
This may seem a radical solution, but as you can see from the history, it’s only because we’ve become accustomed to there being nine justices. If we reduced the number to three, it is true that we would lose Samuel Alito, but that could be repaired by a conservative president upon the retirement of one of the others. My point to readers is that there is a solution available to us, but the question is: How badly do we want it, and can we live with the dangers? Given the ruling of John Roberts, I am of a mind to pursue this. I’d like to send him packing. I’d like to send his leftist friends with him.
All we need to accomplish this is bullet-proof conservative majorities in both houses of Congress, but therein lies the problem. If we are to have any chance to repair this, we must own both the House and the Senate. This makes taking the Senate our most important priority in the Fall elections, but it also means that we must be sure to place conservatives in office. Of course, one could argue(and some will) that if we capture both houses of Congress, and the Presidency, we would have no need of this ‘solution’ to our problem, but I must thoroughly disagree. Our Supreme Court is damaged, and in subsequent rulings, it will be worse if we don’t repair the court. Can you imagine the lawsuits liberals will bring even if we do overturn Obama-care as a matter of statute? What would this Supreme Court do with that? With the mindless and idiotic ruling of John Roberts, inventing law out of whole cloth, I can imagine him finding some way to overturn a Repeal Act. Statists don’t care about logical consistency, after all, or they wouldn’t be statists.
I realize my proposal will fall on deaf ears, and I know too that we have far too few staunch conservatives in either house of Congress to actually carry this out, but I’m merely telling you what could be done, legally, under our Constitution. After all, the worst part of this Supreme Court ruling isn’t merely that Obama-care has been upheld, but the sinking realization that liberals effectively have a ruling majority with which we will be stuck for a long, long time. Nothing is more dangerous to the country than a court that will not act as a brake on tyranny. Let’s call it the Three-LIFO plan and be done with it.