Bench Memos

NRO’s home for judicial news and analysis.

Re: Not Stacking Up


I rarely find occasion to disagree with Matt, but his damning critique of Jean Edward Smith’s New York Times op-ed is far too kind.  Beyond providing zero support for his assertion that there is a five-justice conservative majority that has been “thumbing its nose at popular values,” Smith offers no clue that he recognizes that it is sometimes the role of the Court to trump the majoritarian process.  Smith likewise provides no evidence for his charge (or insinuation) that these justices have “adopt[ed] a manifestly ideological agenda.”  He also bizarrely claims that the Roberts court has entered (“voluntarily” or otherwise, whatever that might mean) “what Felix Frankfurter once called the ‘political thicket.’”  Frankfurter used that term to refer to reapportionment of state legislative districts; the reader has no idea what Smith might have in mind.


Smith’s call for a Democratic president and Congress to add one or two additional seats to the Supreme Court is equally weird.  Smith contends that “there is nothing sacrosanct about having nine justices” and that “court-packing … is a hallowed American political tradition.”  But the last change to the number of Supreme Court seats occurred in 1869—138 years ago—and the lesson conventionally drawn from the failure of FDR’s court-packing plan is that it is no longer acceptable to change the number of seats for political reasons.  Smith asserts that FDR’s plan failed only because it was “convoluted” and that FDR would have succeeded if he had “simply request[ed] that Congress add an additional justice or two.”  Even if that were the case (and I’m highly skeptical), now that decades of liberal judicial activism have given the Supreme Court a predominant role in American public life, it is sheer folly to think that it would be a simple matter to add Supreme Court seats.  If ever there were an occasion for a popular Senate filibuster of legislation, that would be it.  (Smith doesn’t even acknowledge the possibility of a filibuster.)  All that said, I’d sure love to see Democratic presidential candidates embrace Smith’s proposal.


Smith’s embarrassing essay is yet further evidence that the New York Times editorial page will publish anything, no matter how loopy or devoid of argument, that advances its political agenda.

Tags: Whelan


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