Jean Edward Smith: NYT letter writers criticize his court packing plan

Historians in the News

Re “Stacking the Courts,” by Jean Edward Smith (Op-Ed, July 26):

While Mr. Smith begins by warning against the court’s entering into “the vortex of American politics,” insisting that “the court’s authority extends only to legal issues,” he ends by criticizing the current court majority for “thumbing its nose at popular values.”

But popular values are not the stuff of constitutional doctrine. Indeed, the very purpose of a written Constitution is to insulate certain bedrock principles and protections from being undermined by the popular values of the times, even if they represent the current view of the majority.

Under our system of constitutional government, popular values are to be debated and applied in that “vortex of American politics” into which Mr. Smith insists the court not enter. They are not supposed to provide a basis for resolving the legal issues to which Mr. Smith rightly insists the court confine itself.

John L. Strauch
Cleveland, July 26, 2007


To the Editor:

Jean Edward Smith focuses on adjusting the number of Supreme Court justices as a corrective to the ideological rigidity of the current court. This misdirects attention from the real structural flaw that makes court appointments so politically poisonous: tenure.

The fact that each new justice is likely to serve for decades allows a president to impose a set of extremist ideological values on the nation long after those values have been rejected at the ballot box.

Sensible reform would limit each justice to a single 10-year term. Each president would then have plenty of opportunities to restock the court from the nation’s overabundant pool of legal talent.

The court, deprived of the prospect of decades of ideological consolidation, would be forced to seek a stable judicial consensus that genuinely reflects the nation’s political values.

Carlo Graziani
Chicago, July 26, 2007

To the Editor:

Jean Edward Smith seems to have the same feeling about the courts that many modern citizens do — namely, that they are entitled to a court that holds their “manifestly ideological agenda,” and if it doesn’t, someone must “bring the court to heel” and “set it straight.”

The court’s purpose, however, is not to hold any particular political agenda, but rather to interpret the Constitution and our laws — as written and originally intended by those who wrote them.

If you do not like the original intent of the Constitution or our laws, you are free to elect officials and try to change them, but it is not the role of the judiciary to, in effect, make these changes for you.

Changing the number of justices would clearly be an attempt by the executive and legislative branches to undermine the judiciary in order to achieve political gains they could not earn in the court of public opinion.

Nick Tucker
Atlanta, July 26, 2007

To the Editor:

Jean Edward Smith argues that Congress should increase the number of Supreme Court justices apparently because the court is “thumbing its nose at popular values.”

Of course, this really means that the court issued decisions with which Mr. Smith disagrees.

For example, would upholding the constitutionality of a late-term abortion law that was passed overwhelmingly by both houses of Congress constitute thumbing one’s nose at public values?

Indeed, it’s rather telling that criticisms of decisions of the Roberts court usually center around why the critic finds the outcome distasteful rather than any cogent critique of the legal reasoning employed.

Mr. Smith’s proposal is a request that Democrats extort the Supreme Court with threats of “stacking” to coerce it to follow their ideological agenda.

Michael J. Gelfand
Jericho, N.Y., July 26, 2007

To the Editor:

Life tenure for federal judges came about in reaction to court-packing abuses by Charles I in the 1630s. As our republic has evolved into a truly representative democracy, this concept has become ever more troubling.

To avoid blatant political manipulation of the federal courts, I propose amending the Constitution to: (1) make the terms of circuit and appellate federal judges 14 years, with retirement mandatory at age 75; and (2) fix the Supreme Court at nine members, give the chief justice life tenure and stagger the associate justices at 16-year terms, with one term expiring every odd year.

This would give every sitting president two Supreme Court nominations, with Senate confirmation, and would ensure regular input by the other two branches of the federal government.

Lewis B. Shrady
Irvington, N.Y., July 26, 2007

To the Editor:

Jean Edward Smith, my old thesis supervisor, makes the simplistic proposition that at any given historical instant a partisan majority should pack the Supreme Court to ensure that it reflects and fixes in law the preferences of a passing political moment.

Does he suggest that such defense of the one true legal religion (against the other one) must only be done or attempted, as it was in the past, in times of national emergency, like the Civil War or the Great Depression?

No. He proposes to employ majoritarian bullying to overturn the legal and constitutional balance of power for the vapid purpose of upholding “popular values,” whatever and whose ever those are.

Such radical propositions often make good seminar debates, but never good constitutional or lawful order.

Cathal J. Nolan
Boston, July 26, 2007
The writer is executive director of the International History Institute, Boston University.

To the Editor:

Jean Edward Smith posits that if the current five-man majority on the Supreme Court “persists in thumbing its nose at popular values,” a new president and Congress could provide a corrective.

It is a preposterous notion that the role of the court is to rubber-stamp or even reflect either “popular values” or popular culture. Nothing could be more dangerous.

The court’s role is to protect us from and look past transient mores and defend the Constitution.

Thomas Volkema
New York, July 26, 2007

To the Editor:

Jean Edward Smith’s reminder that the country need not remain at the mercy of an “ideological” Supreme Court any longer than the next election prompts the comment that it is just plain wrong for a court with eight men and one woman to have the power to determine questions that affect women far more than they affect men.

Congress and the next president should add four women to the Court, and the Constitution should be amended to provide that future Supreme Court vacancies be filled so as to maintain alternating male and female five-to-one ratios.

Jetson E. Lincoln
Montclair, N. J., July 26, 2007

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