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."When"... "If"... "may".... The writer, Jean Edward Smith, author of a biography of FDR, is not exactly taking a position on what the Roberts Court is doing.
Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike."[P]ersists in thumbing its nose at popular values"? Okay, now Smith seems to be taking a position, though there's no substance in his piece that backs this up, but even if it were backed up, it would be an idiotic point. He starts out fretting about a Court that enters the political sphere, and he ends up worrying about the Court failing to pick up the values of the political majority. So which is it?
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.
Of course, I know: You want the Court to transcend politics but to transcend it in the direction that squares with your politics. I laugh at that.
Two more things:
1. Specify which cases are bothering you! If the "values" you prefer are so "popular," why can't Congress simply enact them as a matter of statutory law? I need to know what you're talking about before I can tell whether these new statutes would violate constitutional law. For example, if you're irked that the Court didn't strike down the "partial-birth abortion" statute, Congress doesn't have to restock the Court with Justices who will expansively construe abortion rights, it only needs to repeal its own statute!
2. The Constitution does create checks on the Supreme Court, and Congress can decide to use them. But such actions by Congress will themselves have a political effect. You need to look down the road and see if you like those effects too. It's not enough to say, wouldn't it be great to be able to suddenly appoint 2 new Supreme Court Justices at a point when we have a President who will nominate individuals we think will do things we like? You will need to explain why this solution is so important, and, when you that, you will probably end up in a debate that will portrays the Court as political. You may succeed in increasing the number of Justices at the expense of delegitimatizing the very Court you want to rely on. And when the next President comes in, he or she will have more power to choose Justices for openly political reasons.