Whoever Obama picks will obviously be of the liberal persuasion which will in actuality not change the make up of the Court as Justice Souter has for the most part sided with the liberal Justices in most of his opinions and decisions. Though appointed by Bush 41 and thought at the time to be a moderate to conservative appointment, Souter has been far from that persuasion and Obama’s pick will fall in line with Souters record or even further left.
While Obama’s pick will not make any significant change as far as the decisions of the Court there is one concern that I have for the future of the Court under Barack Obama. Obama in his policy and his agenda very much emulates Franklin Roosevelt, though Obama is more radical and further left then even FDR was.
In 1937 in an attempt to stop the Courts negative decisions to many of Roosevelt’s New Deal policies which had stopped cold many of the legislative initiatives that were over turned by the Court because of Constitutional challenges, FDR tried to stack the Court in his favor with Judges who tended to agree with the direction the New Deal was designed to take the country and would side in favor of FDR in Constitutional challenges to his policy.
Using the pretence of appointing one Judge for every sitting Judge over the age of 70 in order to maintain Court continuity when older Judges retired, FDR proposed to the Congress the ability to give the President authority to appoint more than the nine Judges that had been the norm since the 1869 Judiciary Act which was initiated by Chief Justice Salmon Chase to reduce the size of the Court to nine Justices since the Constitution set no limits as to the number of Justices.
Though claiming the move was for Court continuity Congress understood that FDR’s proposal was to stack the Court in his favor and the initiative fell to defeat by a 70 – 20 vote in the Senate which stripped the bill of its Court packing provision. This move caused political damage to Roosevelt that he never fully recovered from for the remainder of his time as President.
Obama is possibly facing a similar situation with the Courts in the not to distant future. Many of his policy initiatives that have been passed and are in the process of being proposed have been questioned as to the Constitutionality of the legislation. Thus far there have been no Constitutional challenges to Obama’s agenda which I believe is because many are still in a state of shock resulting from how swiftly he has moved and hastily he has pushed through the legislation.
Eventually Constitutional challenges will arise and if the nine Justices actually follow the true intent of the Constitution many of Obama’s policies will not stand especially in light of the 10th Amendment which specifically refers to limited government calling for the, “powers not delegated, ” to the government in the Seven Articles shall be , “reserved,” for the people and the States.
Certainly his moves with GM and Chrysler would also fall under Constitutional question and Presidential authority as established in Article II since he has fired one CEO and news is coming to light of pressure by the Obama administration on Chrysler stock holders to take options that were not in their best interest in order to allow a bankruptcy that would financially favor the Unions over the top stock holders.
So with Constitutional challenges a distinct possibility and the make up of the Court even with the Souter replacement not changing from its present configuration, Obama could try and follow FDR’s example and stack the Court in his favor. With a 60 vote Senate Majority Obama could try and exert political capital in order to stack the Court if the challenges take place and if he loses those challenges before the Supreme Court.
Also in conjunction to the make up of the Court, Obama faces the possible retirement of some of the older Justices who, with the exception of Scalia, are all more liberal in their decisions. Scalia, if his health holds out will also hold out until he can retire with a President in office who will replace him with a like minded Justice. So knowing that Obama’s possible future replacements would not change the current make up of the Court, could spark a move to add to the number in order to create a Court in his image. Especially while he has a strong majority in the Senate to back him.
Obama has stated in the past concerning the redistribution of wealth and the civil rights legislation of the sixties that was challenged in the Courts, that the Supreme Court failed to exceed their, “Constitutional restraints, ” concerning wealth redistribution and as such in Obama’s opinion the courts failed in their application of the law during the civil rights legislative initiatives. Proving that Obama believes in a very activist court and a loose interpretation of the Constitution by the Court.
The current more balanced Court is not as activist as Obama believes the Court should be and as such he may again use the possibility of stacking the Court to make the activist Court that he would create which would be a legacy left behind changing the balance and make up of the Court for years to come. A move that is not out of the rhelm of possibility for at least the next nearly two years while Obama has the political strength in the Senate. Knowing that the 60 vote strength could change against him in the 2010 mid term election.
Ken Taylor http://theliberalslies.blogspot.com