Bench Memos

NRO’s home for judicial news and analysis.

Not Stacking Up


Marshall University (W.Va.) historian Jean Edward Smith, a biographer whose book several years ago on Chief Justice John Marshall is one of the few bits of gold amid the mountains of dross in Marshall scholarship (albeit with one notable error I remarked here long ago), has an interesting historical tour in today’s New York Times of the Congress’s use over the years of its power to control the number of seats on the Supreme Court.

Perhaps his piece suffered from some editorial butchery, however, for I cannot see just what Smith’s point was regarding our present circumstances.  Here’s the final paragraph:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

Go see for yourself if you won’t take my word for it, but I promise you that this is the sum total of what Smith has to say about the behavior of the contemporary Court.  Roberts “and his conservative colleagues” have upset Smith somehow.  Yet who can overlook how often the “five-man majority” is four men and a woman, whenever Kennedy switches sides?  And in what respect are these five “thumbing [their] nose[s] at popular values”?  Smith never tells us (or the editors dropped the gravamen of his argument!).  But as I showed the other day, there are precious few instances in which the “conservatives” on the Court are guilty of “activism” by any measure, however jury-rigged–certainly as compared to their opposite numbers on the left wing of the bench.

Does Smith really think that Democrats (and others like Sen. Specter), who have spent years trumpeting the virtues of “judicial independence,” want to go to the mattresses over adding some justices to the Court, just in order to accomplish the strangulation of political speech, the raising of confiscatory tort awards that enrich the trial bar, and the manipulation of the lives of schoolchildren according to their race?


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