Could the Democrats Really Pack the Supreme Court?

I am a St. Paul Criminal Defense Attorney. As a result, I frequently look at issues of the judiciary from the perspective of one who works in the trenches. I stand before judges and juries in St. Paul and across the State of Minnesota constantly. I’m always concerned about an agenda or more specifically, an anti-Defendant agenda.

As the Country looks at the possibly of another new Supreme Count Justice, some in Democratic Party circles are suggesting packing the Court. Essentially, this means adding more Justices to the Supremes in order to counter-balance the number of Conservative members on the court. President Roosevelt tried to do it in 1937. Others have argued about it. FDR was talking about 15 justices. It never happened.

The question, in short, is can the Democrats do it? And the answer, also in short, is yes.

There is nothing in the U.S. Constitution that requires a specific number of Justices. When the Court started, they had six, It then went to 5 and then to six and then to eight at the hands of President Jackson. Ultimately after a time, it landed at nine and has stayed since that date. So, its possible.

The Dems would need a majority in the U.S. House of Representatives and a majority in the U.S. Senate. They would both have to pass bills and get a majority, generally their own members, to agree. They would then have to put that before the President. He or she too would have to sign off on it.

So, the answer is yes they can. However, the next obvious question is, will they. That is a political question that brings questions and political exposure of its own. This may cause serious anger and a backlash and the Dems are certainly conscious of that. I suspect the only way we may see this is if Joe Biden wins the White House and the Dems take both House of Congress.

If this happens, maybe. From the perspective of a St. Paul Criminal Defense Attorney who walks into court with his clients, it might impact them. It might change some procedural outcomes. It’s hard to say. I guess we will wait and see. In the meantime, tomorrow is another day and another appearance.