Philly Enquirer: Obama Should Pack the Court

If you can't win playing by the current rules, you should change the rules until you do win:

This may come as a surprise to some people, but the U.S. Constitution does not specify the size of the Supreme Court.

The original Judiciary Act of 1789 set the number of justices at six. It shrank to five in 1801. It expanded to seven in 1807. It grew to nine in 1837 and 10 in 1863. It fell back to seven in 1866. It returned to nine in 1869 and has remained at that number since.

Political issues accounted for the changes. The Federalists reduced the number to five, hoping to deprive Thomas Jefferson of an appointment. The incoming Democrats repealed that measure, raising the number to seven. It went to nine in 1837 to give Andrew Jackson two more seats. Civil War issues led to more fluctuations before the court settled at nine under President Ulysses Grant.

So if nine justices is not writ in stone, the embattled President Obama should deal with this hostile conservative/reactionary court by adding three members.

Three members? The would all be liberals, of course, but even with liberals having 12 justices would make it likely that some decisions would end in ties. Not well thought out.

The article goes on to describe FDR's failed attempt to pack the court to get his New Deal programs through. FDR lost a lot of prestige when the secret plan was revealed.

The article then closes with this:

Had Roosevelt needed his court-packing plan, he would have had to do a better job of winning over the public. Secrecy undermined the proposal, including the president's failure to bring Democratic leaders into his confidence before a news conference announcing the plan. Kentucky Sen. Alben Barkley complained that Roosevelt was a "poor quarterback" on the court plan.

That's an easy enough mistake for Obama to avoid. He can easily be a quarterback for change on a court that will give the president continued grief as he tries to implement his agenda.

Obama can give himself a fighting chance by changing the rules of the game, just as they were changed for other presidents in the 1800s. He should forget bipartisanship and work with congressional Democrats to name three new justices to the court to meet the challenges he faces.

It would be a tumultuous fight, but it would be for a change we could believe in.

This is the same thinking being promoted by Obama, Harry Reid and Nancy Pelosi as they prepare to push Obamacare through the Senate via reconciliation. That procedure was never meant to handle anything other than budget bills, and certainly wasn't intended to be used to take over 1/6th of the US economy or promote some sort of social engineering experiment.