Fans of the United States Constitution pride themselves on the concept of balance of power among the three branches of government.
The legislative branch can raise taxes, amend the Constitution and enact laws. The executive branch can veto them, control the military and appoint judges. The judicial branch can declare laws and presidential actions unconstitutional and overturn amendments.
These checks and balances ensure no one has ultimate power.
Throughout America’s history, presidents have been trying to stack the court in their favor.
Fans of baseball will appreciate this analogy. If politics are like baseball, the White House and Congress would be the two teams. The bats and balls would represent legislation. That leaves the umpire. Chief Justice John Roberts says that’s where the Supreme Court comes in.
“Judges are like umpires,” Roberts said during his confirmation hearing. “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”
Currently, the Supreme Court has six conservative-leaning judges and three liberal-leaning ones.
According to SCOTUS blog, 43 percent of recent cases were decided unanimously. That percentage is down just a bit from the 46 percent average over the past decade. Of those, 15 percent of the cases went along party lines, with the six Republican appointed judges voting one way and the three Democratic judges voting the other way.
That’s why many presidents have tried to stack the Court.
It all started with what’s called the Midnight Judges Act. The name came about because President John Adams was said to be signing judicial appointments at midnight prior to President Thomas Jefferson’s inauguration. During that session, Congress added 16 judges to change how federal courts worked. With 19 days left in his presidency, John Adams quickly started filling those spots with members of his own party. The changes were short lived as the bill was repealed a year later.
The political jockeying continued.
About 40 years after the Midnight Judges Act, President James Polk appointed his campaign advisor to the Supreme Court.
In 1869, Congress expanded the Supreme Court to nine justices.
The following century, President Franklin Roosevelt tried to add six more justices to the Supreme Court and failed. That happened after the Supreme Court struck down much of his New Deal plan.
In modern times, researchers from William & Mary and Ohio State University said the politics of the Supreme Court have grown in the past decade.
“Presidents–for the first time ever–make ideology the dominant factor in appointing justices,” they wrote. “The Senate confirmation process, too, pays increasing attention to ideology, including party line votes that block the consideration of judicial nominees.”
In March 2016, Merrick Garland shed tears as President Barack Obama announced his nomination to the Supreme Court.
“Fidelity to the constitution and the law has been the cornerstone of my professional (cries) life and it is the hallmark of the kind of judge I have tried to be for the past 18 years,” Garland said.
Republicans held control of the Senate and then-Majority Leader Mitch McConnell decided Garland wouldn’t get a confirmation hearing during a presidential election year.
The libertarian Cato Institute calculates 60 percent of justices have been confirmed under a divided government. Garland however, would not be one of them.
The politics didn’t end with Garland’s failed nomination. While campaigning, then-candidate Donald Trump spoke about the Supreme Court at a presidential debate.
Moderator Chris Wallace asked Trump, “I would ask you specifically, do you want the court, including the justices that you will name, to overturn Roe v. Wade which includes, in fact states, a woman’s right to abortion.”
Trump responded, “Well, if that would happen because I am pro-life, and I will be appointing pro-life judges.”
President Trump confirmed three justices while in office, one even during an election year.
President Joe Biden may confirm a few as well. Justice Stephen Breyer is 82 and some progressives want him to retire so Biden can fill his seat with a younger person.
Biden is also considering expanding the Supreme Court. In April, he called for a 6-month study to look into it.
