I have little use for many of the innovations that FDR gave us. They innovated in how to steal American republican democracy from the people by legalizing macrobribery.
One of the ideas that FDR had that is usually pilloried is his plan to increase the size of the Supreme Court so that he can appoint new justices to the bench that would support his New Deal agenda. This idea went down in flames.
However, there may be some new value in that old notion. Even if pushing that idea has the same effect that it had in the 1930's -- scaring the Court -- it would be valuable.
Simply put, the Supreme Court could have an additional three members added to it. This would give Bush the ability to name more conservative justices and increase the rate of turnover in the Court. As it is today, our justices can stay on the bench for decades because our healthcare system is spectacular.
This increase in the size of the bench would allow more subtlety in opinions to be aired. It would allow the Congress to have a greater impact on the course of the Court's activities -- reinforcing the check and balance effect. It would force Congress to regularize and control the advise and consent process because higher profile nominations would have to go through more often.
The importance of getting one or two appointments to the bench per presidential term would diminish. As much as I would hate for Clinton to have had a greater impact on the bench, even his appointing more members would have been healthier, since each appointment would be less powerful.
Let's look at this mathematically how appointments to the Court have worked in practice over history. I am going to make some broad generalizations since I have not researched my understandings in depth, but the information is readily available by doing a detailed analysis of the historical composition of the Court.
When John Jay was appointed to the Court by George Washington, life expectancy for the segment of society that was put on the bench (the educated, wealthy, etc.) was better than society at large. I would hazard a guess that it was still only about 65. Persons when appointed were usually well established in the lives. So, ignoring the turmoil of the Court's membership and other neophyte aspects, Court members did not last much longer than 15 years. Even for a 6 member Court you could get a new court appointment every two out of five years -- a ratio of 2:5.
As John Marshall came to dominate the bench for his nearly 35 years on the Court, we probably had an average stay on the bench of 20 years. Effect 6 appointments every 20 years. (Bear with this unscientific approach, please.) Ratio 3:10.
During FDR's term, my recollection of history is that he appointed about 6 members to the 9 member Court over his eleven years in the White House. This is a 1:2 ratio. Since that time, we have entered a period of very long tenures on the bench. The current bench had its first members appointed in 1973 and 1975 or so. Since that time, the entire bench was appointed. (That is only one appointment per seat, if you ignore the technically very significant double appointment of Rehnquist first as associate justice and second as Chief Justice of the United States. In another context, this is not significant to votes since Rehnquist's vote counts either way.) The bench has been replaced been replaced as at a rate of 3:10 or nearly once every 3 years.
Looked at another way, four Congresses have had no voice about the composition of the Court. That is more than one whole Senate cycle that had no voice about the composition of the Court. We are now working our way to completing another Congress with no voice. (This one will likely only have a voice if a retirement is annouced before October 1, 2003, if one of the justices dies or retires due to health issues prior to the next election.)
The checks and balances on this Supreme Court have been woefully inadequate. The argument put forward by Scalia, Thomas, and the Chief Justice are falling on ears tired of hearing them. The middle is soft. The left is devoid of intelligent argument on some of the most important cases of the day (see, e.g., University of Michigan undergrad case).
With Scalia, Thomas, Bryer, Kennedy, and Souter so young, we could see Rehnquist, O'Connor, Ginsburg, and the elder Stevens be replaced in the next 5 to 10 years. Once that cycle is done, we might see the next Court stay together 15-20 years with no change, except by the intervention of God. This is a daunting prospect.
If the immediate need of Bush looks too self-serving, Bush should suggest that that Court size be increased in size to eleven or thirteen over the next two presidential terms -- the current one excluded. The benefits would be many:
1. More justices to cover the increasing number of Circuit Courts of Appeal;
2. More justices to divide the opinion writing between, hence allowing more cases to be heard;
3. More appointment opportunities to increase the checks and balances on the Court;
4. More chances for politicians to voice their opinion on the Court thereby dilluting the intensity of debate over any one appointment;
5. More openings for talented voices to enter opinions on the significant questions of the day;
6. More chance to debate the proper procedure for managing debate on appointments if the number of appointments is known over the transition period;
7. More chance for the debate over the Court to be spread through the grass roots and honestly reflect the opinions of the less political and probably more moderate portion of the country (contrast Schumer and Santorum to the middle of the country).
What was once a political chance to shift the middle of the Court for greedy president may be the answer to our current breakdown and failure in today's system.
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