Will Obama Try to Pack the Court?

The recent ruling by the Supreme Court in Citizens United v. FEC striking down several restrictions against Corporations and Unions making campaign expenditures on behalf of candidates brought a reaction by the President promising to work with Congress to, 'develop a forceful response' to the Supreme Court ruling.

Congress does not have the power to simply write a directly contradictory law to the Supreme Court ruling. What bothers me is the use of the word ‘forceful’ usually meaning swift and decisive. Well, there are two ways in which a swift and decisive ‘forceful’ response may be given: 1) Constitutional amendment and 2) change the number of members to the court – known as “packing the court.” Both moves can effectively overturn a Supreme Court decision. The first manner is a very direct way. However, it is not such a swift way to act. Once passed out of each chamber of Congress, three-fourths of the state legislatures must ratify the amendment. This is hardly swift, thus not really ‘forceful.’ Additionally, given that the high court cited First Amendment concerns, are we the people going to readily support any attempt at constitutionally hemming in the First Amendment?

The most direct and ‘forceful’ way to respond is to pack the court. Congress has the power to determine the number of justices that serve on the court. The appointment of Sotomayor did nothing to tilt the balance of power on the court since it was simply the replacement of one liberal for another. For Obama to full press his leftward agenda, he needs Supreme Court complicity. He also must move quickly in the event of a loss of Democrat control of any part of Congress. Adding two liberal judges is just enough to tilt the court ideologically. Obama now has a popular issue to ride to get packing of the court passed through Congress. After all, the prevailing view is that Wall Street and the banking industry are responsible for the economic melt-down of 2008 and the outrageous deficits partially connected to their bail-out. By framing the packing of the court as a mechanism to stop ‘a stampede of special interest money in our politics,” as Obama calls it, he takes over the Supreme Court and thus eliminated the last obstacle to implementing a European-socialist style of government and economy in the United States.

There is historical precedent for this type of forceful move. Franklin Roosevelt and his Congressional allies attempted this same move after Roosevelt won re-election in 1936. The Supreme Court struck down a number of Roosevelt’s New Deal programs. In response, Congress introduced the Judiciary Re-organization Act of 1937. The bill would have allowed Roosevelt to appoint up to six additional justices to the Supreme Court. The court later made several rulings favorable to Roosevelt, consequently ending the need for adding members to the court and handing Roosevelt what he wanted.

Be wary – we may yet see a Judicial Re-Organization Act of 2010.