Take the SCOTUS expansion risk. 13 is the magic number. Do it. Take the calculated risk.

It’s a calculation that Democrats are trying to make exceedingly political and they tend to “blink” -to much that is given, much is expected. Only Congress can increase the SCOTUS bench.

Oct 15, 2021

Argument in favor of expanding

SCOTUS - I think anyone that’s an attorney or support staff could factually make a very strong argument in favor of expanding the SCOTUS bench. Hear me out before you make a conclusion. I would like to walk you through my researched argument in favor of expanding the current bench.

To be clear I am not supportive of the seats being expanded to greater than 13. Again hear me out because I’m going to provide you with a lot of original documents to support my assertion. It’s about the United States Circuit Court of Appeals. Again in order to help you properly visualize our Federal Court System, I want you to think of a triangle.

At the Apex of the judicial triangle is SCOTUS
The middle of the judicial triangle represents the US Circuit Court of Appeals. Of which there are actually 12 not 11 but 12 USCA-Circuits Although it still makes me snort laugh that my trolls didn’t know that well DUH -there’s USCA- Federal District nor were they aware of the Federal Circuit Claims Court, but I digress
The base of the judicial triangle represents the numerous Federal District Courts - of which there are numerous District Courts and this is especially important because states with a greater population density means there are several federal district courts (per state,

Again this argument is solely based on numbers and data —I am purposely not engaging in political gamesmanship because that’s not exactly a constructive debate. To help you better visualize the USCA Map

The SCOTUS bench has a unspoken but ironclad rule that the bench should not be an even number, this includes all Justices and the Chief Justice. Hence the current number of seats on the SCOTUS bench is nine

Brief SCOTUS history lesson…

In 1789 as prescribed by Article Three of the U.S. Constitution. And this is pretty important, so please pay attention -especially to the right hand side of the Library of Congress’ PDF of the 1789 Judiciary Act - note the 13 districts because again in 1789 America was a very young Country and the population was just over 3.66Million

in 1789 the legislative branch (Congress), exercised the constitutional power vested to them by way of the codification of the Judiciary Act of 1789 —which granted Congress the power to create “inferior federal courts” (colloquially known as Federal District Courts). Furthermore the 1789 Judiciary Act — not only established the Judicial Courts for the United States, which was signed into law by President George Washington on September 24, 1789.
Article III of the Constitution established a Supreme Court, and vested Congress with the authority to create lower federal courts, as needed (this includes the. federal district courts and US Circuit Court of Appeals…

Now those of you who followed me on Twitter know that there’s one place in the Capitol that I like to go sit and think. There is a solemnity of the old SCOTUS chamber and it doesn’t actually hit you until you’re inside the old SCOTUS chamber. For me it’s kind of hallowed ground — old SCOTUS chamber inside our Capitol Building.

Fun SCOTUS Fact Files 12

The Supreme Court was set to first assemble on February 1, 1790 at the Merchants Exchange Building in New York City. But inclement weather prevented some of the justices’ from arriving for the first SCOTUS session. Due to transportation issues and heavy snow the February 1, 1790 Session was forced to postpone until the next day.

In 1810 the Supreme Court held its first session in the Congressional Chamber with Chief Justice John Marshall presiding.
In 1860 SCOTUS was moved upstairs into the former Senate Chamber and this room was converted into the law library.
In 1935 SCOTUS formally left the US Capitol After the Court left the Capitol in 1935 this chamber was divided into four rooms and used by the Joint Committee on Atomic Energy.
In the 1960s the chamber had been all but abandoned. It was effectively shuttered and that chamber stood vacant until it’s restoration in 1975.

Increase the current SCOTUS bench to 13 seats…

Again this is an a-political discussion, given today’s deeply polarized political climate I don’t think approaching this discussion from a political point of view is very constructive. My argument is actually pretty simple:

Increase the current SCOTUS Bench to 13 seats. This would represent the 12 distinct US Circuit Court of Appeals - and adherence to the “odd” number of SCOTUS Justices and account for a Chief Justice.
The discussion of increasing the SCOTUS Bench to >18 seats is absolutely absurd and it’s a political fight Republicans want. Ergo increasing the SCOTUS bench to account for the additional USCA added since 1789 seems logical and it’s factually based.

For Example -according to historical data from the US Census -in 1789 the United States had a population of 2,666,811. Whereas (also according to the US Census, via the US Population Clock) as of the date of this publication (Oct 2021), the estimated US Population is 332,475,723.

Presidential Commission on the Supreme Court of the United States…

On April 9, 2021, President Biden issued Executive Order 14023 3 4 which created the the Presidential Commission on the Supreme Court of the United States…

…comprised of a bipartisan group of experts on the Court and the Court reform debate.
The Commission’s purpose:
provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform
including an appraisal of the merits and legality of particular reform proposals.
examine the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

The Commission’s Draft Report:

In advance of the Commission’s October 15, 2021 Public Meeting -the Commission transmitted their draft report to President Biden on October 14, 2021. The Commission’s draft report lays out various arguments pro/con concerning reforming the Supreme Court. Important though is the draft report does NOT make recommendations. The commission is slated to make it’s final, report to President Biden in mid-November.

Commission Expanding SCOTUS’ bench…

The Commission tackled the burning questions about potentially expanding the number of Supreme Court justices. Sadly because of the ever growing political polarization -this means both Democrats and Republicans, will fight to the death and ultimate power over SCOTUS. Incidentally the commission did laid out a several factors that should to be considered, if expanding SCOTUS is actually the route the Biden Administration decides to follow. The factors the Commission elucidated include:

what effect it would have on the larger judicial system
how the political timing would impact SCOTUS’ independence, and
what kind of example would expanding SCOTUS might set for other countries, that “might”use this proposed expansion to egregiously justify tampering with their own judicial systems.

On the potentiality of increasing the size of the SCOTUS bench;

increase the bench gradually, over a set period of time versus all at once, and
addressed other proposed reforms, such as term limits and having justices associated with political parties.

Spicy sidebar files: repeat after me, CONGRESSIONAL TERM LIMITS (both chambers)

Fact: the President of the United Stares is limited to two terms. It is absolutely unconscionable and actually unfathomable that in 1985 when Addison “Mitch” McConnell was elected to the U.S. Senate;

We Are the World, Aha’s Take on Me and Foreigner’s - I Want To Know What Love Is - Tears for Fears’ - Shout and Lionel Richie’s - Say You, Say Me …were the top pop music songs in 1985
According to the US Census Data - In 1985 the Median household income was $23,620,
And where was the Internet? NSF (National Science Foundation) “high-end computing resources at its recently established supercomputer centers” and in 1986 NSF formally launched NSFNET which “connected the supercomputer centers at 56,000 bits per second—the speed of a typical computer modem today”

Oh and as for the current Senate (slim-Jim) Majority Leader -Senator Charles Schumer was elected to the U.S. Senate in 1999;

In 1999 Britney Spears’ -Baby Hit Me One More Time, Ricky Martin’s - Livin' La Vida Loca, Rob Thomas & Santana - Smooth, TLC’s -Scrubs and Lou Bega’s - Mambo No 5 (A Little Bit of ...) topped the pop music charts
According to US Census data, in 1999 the Median household income was $42,000.00
And let’s not forget about Bill Clinton’s Internet Town Hall -which was a historical in our Country’s history

After the death of Congresswoman Sala Burton, a special election was held, and Nancy Pelosi won. Again if you notice I’m not blaming one particular party -the issue has always been (for me at least) Congress doesn’t have term limits and it’s long past time for us to have an earnest discussion about the feasibility of amending our Constitution and enacting term limits. For Example -the Senate should have a 2 term limit max = 12 years and the House of Representatives should have a term limit of 6. Which yields 2 years x 6 = 12 years; I suppose we can have that discussion at a later date. But I’m really tired of members of Congress spending nearly 3 decades in Office. It’s time for change and a retirement of the “Old DC Guard” because if POTUS can only serve 8 years, why in the hell are Senators & House of Representatives spending decades in Congress…

Commission’s Draft Report cont…

You must have realized that my slight detour was predicated on the Commission’s Draft Report - I got to pages 4 thru 6 and I tilted my head towards the sky and the very last of my F’s escaped my perusing lips in utter contempt and distain -because of course Mitch did… Asshole still owes us after denying President Obama a SCOTUS seat -but it’s fine that Merrick Garland is our Attorney General. And so help me Sweet Baby Jesus the Blue-QANON on Twitter that flame AG Garland — they can seriously duck all the way off. You recalcitrant ignoramus- shut your filthy disinformation pie holes — you make me want to get back on Twitter just so I can cal, your deza-despair out.

And while I do not fully agree with the Commission’s Draft Report - on this particular subsection they really do an excellent job of encapsulating the enormous power SCOTUS has. Please do not get me started on the same crew of Blue-QANON that repeatedly plagiarized my Brett Kavanaugh research. I’m still pretty pissed off that several blue check Twitter accounts didn’t have the common decency to either attribute my research and actually lifted my findings highlights and all —thievery is something that I do not condone and frankly some of these ego maniacs monetized my research and didn’t even bother to attribute much less ask my permission. Plagiarism is intellectually dishonest and in my industry you will be black listed in perpetuity.

Acute Polarization is likely to continue…

Some might find that the Commission and their draft report’s failure to make conclusions or identify the origins of the political polarization off-putting but intellectually I completely understand why the Commission didn’t take the political bait/detour.

Furthermore the latter part of the 1st bullet point makes my eye twitch, a lot because what the Commission opines is well -as I noted nothing good will come of “reorganizing the membership of the Court” ← if you want to see an actual DC turf war - like throwing down and going to the mats and figuratively speaking “stabbing you in the front -because in DC, we like to look you in the eyes as we are screwing you over” —then go ahead and support the latter because I’m telling you both parties will not be inclined to take power away from SCOTUS - it’s hardly a solution to an ever deepening political quagmire.

Again to be clear I don’t fully support the Commission’s Draft Report -while they certainly articulate strong arguments —I do think in some respects they have overly complicated the matter. In short I think bifurcation of reform and potentially adding additional seats to the bench. My observation is the Commission really focused on the Senate Confirmation Process — as they report elucidated “merit close attention and consideration,” and further noted “extensive and bipartisan testimony we received concerning the intense conflict that now characterizes that process.” My point is there’s a lot of crosstalk of numerous important issues out “screaming goating” themselves. I think by bootstrapping two distinct issues, this is a recipe for deepening the political divisions.

Which is why I will maintain that a very solid argument can be made that expending the SCOTUS bench to 13 is reasonable and it would be in line with the growth of our Federal Judiciary…

Has history not taught Congress anything?

Again it’s inarguable that the power to increase SCOTUS seats on the bench is solely and squarely vested with Congress. It is laudable that President Biden opted for a bipartisan commission but realistically I’d much rather Congress actually uses the power vested in them by our Constitution. The 117th Congress clock is ticking… and it seems like this Congress is willing to abdicate its authority (cough AUMF, cough shitty Trump trade deals, cough why must Democrats have so much infighting, cough …)

Article III “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Below are additional historical facts and Congress’ important role - over the course of our Country’s very complicated history - Congress has added/reduced seats on the Supreme Court Bench, from a low of five during John Adams' presidency and ten during Abraham Lincoln's presidency. Also see the Federal Judicial Center 5and how SCOTUS has maintained nine seats on its bench, which includes the Chief Justice

In 1807, Congress decided to increased the size of the SCOTUS bench to seven, giving Jefferson that extra appointment. Via the Seventh Circuit Act of 1807 vis-a-vis “An Act establishing Circuit Courts, and abridging the jurisdiction of the district courts in the districts of Kentucky, Tennessee and Ohio"
- SEC. 5. Be it further enacted, That the supreme court of the United States shall hereafter consist of a chief justice, and six associate justices, any law to (the) contrary notwithstanding. And for this purpose there shall be appointed a sixth associate justice, to reside in the seventh circuit, whose duty it shall be, until he is otherwise allotted, to attend the circuit courts of the said seventh circuit, and the supreme court of the United States, and who shall take the same oath, and be entitled to the same salary as are required of, and provided for the other associate justices of the United States.
  — Seventh Circuit Act of 1807, section 5.
H.R. 334, An Act to fix the Number of Judges of the Supreme Court . . . and to change certain Judicial Circuits -Judicial Circuits Act of 1866, June 13, 1866 -Congress increased the SCOTUS bench to 10 justices
In April Senator Markey introduced the Judiciary Act of 2021 via S. 1141 6 -To amend title 28, United States Code, to allow for twelve associate justices of the Supreme Court of the United States. Arguably the shortest Senate Bill offered in recent memory -also see tracking of S. 1141

13 is the magic SCOTUS number don’t blink - just do it. For a true independent judiciary.

Which now brings us full circle - 13 Supreme Court Justices. Again because that would mean “more (arguably proportionate) representation” -13 justices account for representation of our 12 circuits within our Circuit Court of Appeals and it would actually ameliorate the “packing the court” narrative. The term “packing the court” or “court packing” carries a huge negative connotation and implies less than ethical practices. With the centralized objective solely for the love of power and then holding on to that power.

Again if you take the corrosive political aspects out of this debate and solely focus on binary facts — 13 justices would equate to a far more equal distribution of an independent judiciary. But then again I could simply retweet my sourced to the teeth 2018, 2019 and 2020 Twitter threads. Oh wait never mind. Face meet palm. Rinse and Repeat until my common sense fully kicks in. I do hope that this article at least provided you with enough original documents to read and that should help you make an informed opinion, or a few tidbits of our Country’s complicated history.

As mentioned the Commission’s Draft Report was recently uploaded to the Biden Administration White House’s website. It’s realistically only 25 pages long - but it has 205 footnotes and it equates for 9 of the 39 pages. But man I’m a sucker for footnotes. It’s my jam and you can certainly judge me on that. The final report is expected to be released in November.

In conclusion the Commission’s Draft Report (there is a public meeting scheduled for October 15, 2021, but I’ve been unable to find a streaming channel for tomorrow’s hearing. And I might update this article accordingly once I find a link to the hearing. My final thought is, the Commission’s Draft Report is incredibly thorough. Yet in some areas they seemed to be less comprehensive than others.

The Draft Report largely focuses on the Senate Confirmation Process. Which served as a catalyst for “term limits” my spicy sidebar. Because Mitch McConnell decided to punish President Obama and refused to confirm Merrick Garland to the SCOTUS vacancy. Yet Kentuckians continue re-elect him. 1985… yes 1985 that’s how long the turtle-grim-reeper has been in the “dc swamp” ← Addison is the swamp monster

In simple terms, the root of the problem is the deepening and widening chasm between Democrats and Republicans. We stop looking out for each other. What happened to bipartisanship? When did compromise become a curse word? The two parties are hopelessly deadlocked. Add on to that, the unnecessary interparty fighting (Dem v Progressive, GOP v Trump-GOP). To be clear Donald Trump didn’t create the acrid political discourse, which is flowing through the Potomac River.Trump did what no other politician (in recent memory) would dare to do. Trump tapped into the anger, hate and lies on a whole new stratospheric level/

As always if you have questions. Please feel free to leave a comment and I’ll do my best to respond in a timely and factual manner.

File411’s Newsletter

Discussion about this post