Neither Vice President Biden nor Senator Harris took the bait during the recent debates to answer whether they would support expanding the Supreme Court if Amy Coney Barrett is confirmed. It is hard to dispute their strategic choice. Polls say they have a substantial lead, the confirmation’s future remains unwritten, and whether Court expansion is a necessary – or viable – option is not a ripe issue for the Democratic ticket to comment on.
But there was a missed opportunity. The country needs leaders who embrace a more educational role. It might be too much to ask for a sensationalized professorial type like The West Wing’s Jed Bartlett. Still, we ache for strong national voices who can help contextualize the complexities we face today. In fairness, Vice President Biden and Senator Harris have a penchant for verbalizing forward-looking visions and connecting with the American voter. Demanding an erudite exposition on complex subjects may be too much in the midst of a tense campaign. Ever-present soundbites and tracking polls push candidates to only weigh in on ‘safe’ issues.
This column is not an overall assessment of the election. Still, we crave leadership that supplies a broader perspective. During crises and transitions, past presidents have provided teachable moments that ground us on how the struggles of the day fit within our national story. Washington, Lincoln, Franklin Roosevelt, Kennedy, Reagan, George W. Bush, and Obama seized the lectern to provide insight in ways needed today.
Last week’s vice-presidential debate provided one example where more of a teaching role could have helped. Susan Page asked Harris the “court-packing” question whether the Democratic ticked would increase the number of Supreme Court justices if the Senate confirms Judge Barrett. Vice President Pence suggested such a move would defy “separation of powers” by ending 150 years of nine justices. Senator Harris invoked President Lincoln and pressed a different theme about the current administration’s untrustworthiness. That, too, may have been an understandable tactic given the track records.
Yet another reply could have been given – one that could have provided a teaching moment regarding our structures and dispelled the implication that something constitutionally improper would occur if the number of justices changed. Expansion of the Court would not violate the “separation of powers.” It would be an application of them and the accompanying checks and balances, irrespective of whether it would be wise as a policy matter. Setting the number of justices is a “power” of Congress under Article III, Section 1. The Court’s “powers,” by contrast, do not include maintaining its composition at a particular number. Its primary power is to interpret the law – “to say what the law is,” as the Court itself held in Marbury v. Madison in 1803. That power is going nowhere, whatever the number of justices. The question of whether changing the number is a good policy decision can be left for another day.
Imagine that this had been the response to the accusation that increasing the number of justices would violate the separation of powers principles:
The Founders saw best not to fix the number of justices, but to leave it to an elected Congress. In 1789, the original number of justices was six by, and almost went to five by another congressional action. It was moved to seven by Congress in 1807, nine in 1837, ten in 1863, and back to nine in 1869. There was a strong push in 1937 for Congress to increase it to fifteen because of Court politicization.
If Judge Barrett is confirmed, and the Senate gains a Democratic majority, three justices will have been confirmed during a single-term presidency. Plus, there is a potential contradiction between how the Senate approached Judge Garland in 2016 versus Judge Barrett in 2020. This means we may find ourselves in a politically affected situation that might be just what the Founders had in mind when leaving the number of justices up to an elected body.
In the end, the power to say what the law is will remain the Court’s role, regardless of the number of justices. Americans watching should know this is all an example of the checks and balances that makes our constitutional system work and protects us against any disparities. We can leave it for another day if changing the number of justices would be the right choice. Let’s just be clear on which branch has what powers.
Regrettably, that teaching moment was lost. Perhaps nuance is too much to ask for at this particular moment. That being said, more teachable moments will come on any number of topics – during the election cycle and after. We can only hope that our leaders will seize these opportunities. If ever there were a time when sound bites need to cast aside, this is it. As the fictionalized President Bartlett once offered, “there aren’t very many un-nuanced moments in leading a country that’s way too big for ten words.” We need leaders capable of marshaling history, context, and life experiences and synthesizing them into clearly stated visions of how we move forward into the next chapter of this country’s growth.
John J. Hamill
John J. Hamill is a trial lawyer based out of Chicago who has practiced in courts across the country since graduating from Harvard Law School in 1993. His writings urge that Americans should look ahead to better civil discourse that starts with a mutual acceptance of the actual facts. He can be found on Twitter and on Medium. He has contributed to Smerconish and other publications, including recently the Chicago Sun-Times.