Eagle Forum Legislative Alerts

Wednesday, May 25, 2016

History Lesson on the Supreme Court

No matter what frantic liberals may tell you, the U.S. Supreme Court absolutely can continue to function indefinitely with fewer than nine Justices, as it has many times in our history. There’s nothing magic about the number nine, which was prescribed by Congress, not the Constitution. If Republicans elect the next president and retain control of Congress, there will be plenty of time to add new Justices to the Supreme Court.

Scholars have even proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction. In addition to controlling the size of the Court, Congress could also authorize the President to nominate new Justices on a regular timetable – say, one during each two-year term of Congress, regardless of whether an existing Justice dies or retires. Legal scholars believe that Congress could implement that system, which indirectly sets a term limit for Justices, without a Constitutional amendment. In the current system, appointments to the Supreme Court depend on the unpredictable death or voluntary retirement of current Justices. The Constitution gives the power of appointment jointly to the President and the Senate, and judges should not be allowed to influence the timing or political affiliation of their successors.

When Alexander Hamilton promoted the new Constitution to a skeptical public, he promised that the judiciary would be the “least dangerous” branch of the federal government because it depends on the other branches to enforce its judgments. For too long, we’ve allowed federal courts to have the last word on important issues. Congress is long overdue to use its constitutional powers to check the federal courts through control over their creation, composition, and jurisdiction. The current unexpected Supreme Court vacancy is a golden opportunity for Congress to reassert its power over the number of Justices.

Listen to the radio commentary here:

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