On Expanding the United States Supreme Court

By Dr Myint Zan

Edward McTirenanWith the swearing-in of Joe Biden as the 46th president of the United States and the Democrats having a bare majority in the House of Representatives and the Senate a few people are enthusiastic and hopeful as the executive and legislative branch of the United States government, for the first time since 2015, is ‘controlled’ by the Democrats. To add a spanner to the works (so to speak) it can be stated that perhaps in a sense the most powerful institution among the three branches of government the United States Supreme Court is and would continue to be in Republican’ hands’.

The news item stated that Judge Merrick Garland which former President Barrack Obama appointed to replace the late Supreme Court Justice Antonin Scalia in March 2016 eight months before the 2016 US presidential election is nominated by President Biden as Attorney-General in the new administration.

When President Obama nominated Judge Garland to replace Justice Antonin Scalia eight months before the 2016 election, the Republicans who held a majority in the Senate and Senate judiciary committee cussedly refused to give a hearing to Judge Garland with the reason that ‘just eight months before the 2016 election the next President should nominate the Supreme Court Justice’.

Yet these same Republican Senators, outrageously rushed and approved the nomination of Amy Coney Barrett (born 28 January 1972) as a Supreme Court Justice literally a week before the 3 November 2020 US election.

In this writer’s view for Judge Merrick Garland, the post of Attorney-General would be if not ‘cold comfort’ then sort of ‘consolation prize’ since a Supreme Court Justice under the United States constitution has life-tenure and plays, in quite a few senses, a more powerful role than the Attorney-General.

Former President Trump was able to appoint 3 Justices in his single term of 4 years (compare that with former President Jimmy Carter who was unable to appoint a single Justice in 4 years as President and President Barack Obama who after eight years appointed only two Justices).

During his campaign, candidate Joe Biden stated that if elected President he would form a ‘bipartisan’ Commission to look into the issue (if need be) of ‘expanding the Supreme Court’. Since the year 1869, the membership of the super elitist US Supreme Court is restricted to 9 Justices.

In November 1936 President Franklin Roosevelt won a landslide victory in the US Presidential elections as well as Democratic Senate and Democratic House of Representatives. In February 1937 Roosevelt tried to (supposedly) ‘pack the court’. He proposed a ‘plan’ that if a Supreme Court Justice did not retire when he (the Supreme Court Justices were all males from 1791 to 1981) reached the age of 70 years and six months, then the President can appoint an additional Justice. Notwithstanding President Roosevelt’s majority with Democratic control then of both the House of Representatives and the Senate Roosevelt’s plan failed.

Now 84 years later President Biden has (albeit barely) a Democratic House and a Democratic Senate (50 Democrats and 50 Republicans with Vice President Kamala Harris as President of the Senate having the ‘tie-breaker’ casting a vote). What proved to be impossible to expand the Supreme Court in 1937 may also be very difficult in 2021. (Perhaps the yet-to-be-formed bi-partisan commission may not wholly concentrate on ‘expanding’ the Supreme Court).

Brief comparison with the United Kingdom Supreme Court

Let’s have a brief contextual comparison with other countries’ apex courts. The current population of the United States is around 328 million. Its apex court has 9 members.

The current population of the United Kingdom is about 66 million. The United Kingdom Supreme Court has 12 members. UK Supreme Court Justices appointed before March 1995 have to compulsorily retire at the age of 75 and Justices who were appointed after March 1995 have to retire on reaching the age of 70.

Brief comparison with the Australian High Court

Australia has a population of about 25 million. The apex court in Australia is called the High Court of Australia, which has seven Justices. From Federation in 1901 to the adoption of the constitutional amendment in 1977, the Commonwealth of Australia like the United States of America since 1791 to now the apex court judges have life-tenure.

One Australian High Court Judge Sir Edward McKiernan (18 February 1892- 9 January 1990) served in the High Court for nearly 45 years and 9 months (from 20 December 1930 to 12 September 1976). A bipartisan constitutional amendment Bill in the Australian Parliament which made it compulsory for all High Court judges (appointed after the amendment came into force) was resoundingly passed in a nation-wide referendum in 1977.

Suffice to state that due to the even more complicated and extremely difficult process of amending the US Constitution a (US) constitutional amendment mandating a ‘compulsory retirement age’ for United States Supreme Court Justices is well-nigh impossible.

The writer has given ‘examples’ from the apex courts of what can be considered from countries which have (like the United States) ‘inherited’ British legal heritage: the ‘mother country’ of the United Kingdom and Australia.

Brief contextual comparison with the Supreme Court of India

Now, briefly to India with a population about 1366 million. Its Supreme Court has 34 Judges, and their compulsory retirement age is fixed at 65. Of course, not all 34 Judges sit to hear cases. A minimum of 3 Indian Supreme Court judges would hear a case. In 1973, a Bench of 13 Judges heard a particularly significant case.

Brief comparison with Myanmar Union Supreme Court

Under the 2008 Myanmar Constitution, the Supreme Court must be formed with a minimum of 7 and a maximum of 11 Judges. As of December 2020, there are 9 Judges in the current Myanmar Supreme Court. The retirement age for Myanmar Supreme Court judges (like those of the Australia High Court and UK Supreme Court) is 70. The 2008 Constitution also has a stipulation that a Judge appointed to it (must age-wise) be at least 50 years old.

‘Foreign Fads and Fashions’

The late Justice Antonin Scalia had stated in one of his rulings that the United States Supreme Court would not, should not pay heed to ‘foreign legal fashions and trends’. On the other hand, Justice Stephen Bryer (born 15 August 1938) has indicated a less hostile or indeed more accommodating attitude towards ‘foreign legal fashions or trends’ (of course not necessarily to ‘follow’ or to emulate) but at least to take note of them. The above country comparisons are made in that ‘spirit’ and context.

Retirement of Justice Bryer and new Justice Obama?

Talking about Justice Bryer, he is at 82, the oldest Supreme Court Justice in the current Court. Justice Bryer is 33 years older than recently appointed Justice Barrett.

This writer has read to the effect that President Barack Obama after his re-election in 2012 gently hinted to the late Justice Ruth Bader Ginsburg perhaps to retire while the United States Senate was (till around October 2014 before that year US mid-term elections) in the Democrats’ control so that her replacement can be approved by the US Senate.

Even if this rumour is untrue IF Justice Ginsburg had resigned or retired say in early to mid-2014 then perhaps Justice Ginsburg’s position would have been filled by a moderate Justice if not as liberal as her then at least not as radical right-wing as the Trump’s appointees are. But that was the past, and that is ‘iffy history’.

For the future, I would like to (dare I say it!) respectfully ‘submit’ that Justice Bryer should opt to retire while the Senate is still in control of the Democrats. IF (to repeat) that scenario was to occur who should President Biden nominate for the Supreme Court?

The ‘murmurs’ circulating in some circles is that former President Barack Obama should or even could be nominated by President Biden. At the age of 59, Obama has sterling legal credentials in addition to his solid political experience. Obama is about the same age as Ruth Bader Ginsburg when President Bill Clinton nominated her to the Supreme Court in 1993. Justice Barrett is only 49 and (again should a Supreme Court vacancy occurs) ideally it is preferable that a youngish (‘fortyish’) female (or for that matter a male as a second preference) candidate (not necessarily a Judge since Senators and academics among others have been appointed to the Supreme Court) with moderate to liberal views would be the best candidate for President Biden to consider.

With the Senate now under Democratic control (under the extreme circumstances if need be) with the casting vote of Senate President Kamala Harris a Biden nomination of a jurist with moderate to liberal views can be appointed to the Supreme Court.

Best wishes to President Biden in not ‘flinching from the tasks’

Back to the bipartisan commission (regarding Supreme Court) which candidate Biden, during his campaign, has stated that he will establish. The President has a lot on his plate, so to speak, but I trust that he would take that step towards reform. Though the past history of President Roosevelt’s failed attempt in 1937 should not be a controlling factor, it nevertheless is true that reforming or expanding the Supreme Court would be a very difficult task.

Biden, a devout Catholic, has quoted a few Biblical passages in his inauguration speech. A quote not from the Bible from the Jewish tradition states (in somewhat classical English translation) ‘It is not for thee to complete the task, but neither art thou entitled to flinch from it’.

With quiet dedication, determination and a spirit of optimism, President Biden has embarked on the task of undoing –let’s face it- the damage done in the past four years. In initiating and implementing necessary and meaningful reforms, I hope and believe that a significant plurality of Americans and quite a few non-Americans the world over wish him all the best.

‘Comparative Law’ as an optional subject or elective is offered in some Law Departments among the 23 Law Departments spread throughout Myanmar. This article should be of some interest and relevance to teachers and students of the Comparative Law course.

Dr Myint Zan, a retired Professor of Law, has established two prizes relating to law in two of his alma maters. The ‘Myint Zan LLM prize’ is to be awarded to those who graduate from the University of Michigan Law School (in the United States) in the Master of Laws (LLM) programme who have shown ‘interdisciplinary interests and commitment to social justice’. Since 2018 three LLM graduates from New Zealand, Ghana and Indonesia were awarded the Myint Zan LLM prize.

He has also established the ‘Myint Zan Prize in Law Studies’ at another of his alma mater The Australian National University (ANU). In 2019 an undergraduate LLB (Bachelor of Laws) student who took the subject’ law, literature and human rights’ at the Faculty of Law at ANU was awarded the Myint Zan Prize in Law Studies.

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