Dispatches from the Creation Wars

Jean Edward Smith has an absolutely ridiculous op-ed column in the New York Times about the makeup of the current Supreme Court. Smith actually wants the Democrats, if they win the White House in 2008, to expand the court in order to get more liberals appointed. The argument he makes for it is not just wrong, it’s downright silly and virtually devoid of substance. His basis is that the court has inserted itself into political issues:

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.

The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.


This isn’t an argument at all. He doesn’t even attempt to flesh it out, to cite actual examples of cases the Court should not have taken, cases it would not have taken prior to the most recent conservative appointments to the bench, or even of cases it has decided incorrectly. He makes no attempt to argue that the Roberts court took more cases that involved controversial political issues than previous courts did, nor does he attempt to provide any criteria to distinguish between cases that are “political” and cases which are not.

In short, he offers nothing but a meaningless catchphrase – ironically, a political catchphrase often used by conservatives claiming that the Court has inserted itself into political issues that should be decided by the legislature. Accusing the court of entering the “political thicket” is like accusing someone of being “biased”; by itself, it simply means nothing. Many Court rulings are going to involve controversial political issues and the ideological makeup of the Court doesn’t change that. So without bothering to make an even minimally coherent case that something is wrong, he proposes a solution:

When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

Well yes, Congress has used this tool in the past for political advantage. That hardly means that it would be justified to use it again, especially in response to this non-existent and absurd assertion of the court being “political.” And he’s not done with the empty rhetoric yet:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two.

“Thumbing its nose at popular values”? Again, just an empty, meaningless phrase. And again, he makes no attempt at all to actually define “popular values” or point to any particular cases that he thinks violates them. This op-ed is every bit as asinine as similar idiotic screeds we see from the right about the courts – replace “popular values” with “family values” and this drivel could have been written by a Rush Limbaugh clone.