Although reasonable optimism prevails that the '08 election will give us a Democratic POTUS and an increased majority in the House and Senate, that optimism is clouded by the specter of an increasing rush to the right by the SCOTUS. A number of diaries have been posted in the last few days detailing the extremist nature of recent SCOTUS rulings.
Common wisdom tells us we are stuck with the right wingers for a considerable time because of their lifetime appointment. And, although, the next POTUS will likely appoint two Justices, they will be liberal Justices retiring and the ideological makeup of the Court will not change. The upside to this black cloud is that the "common wisdom" is wrong.
There are three specific areas in which the Constitution does not validate the general beliefs about the SCOTUS.
The number of Justices on the SCOTUS is constitutional set at 1 Chief Justice and 8 associates. In fact no number is mentioned in the Constitution and the numerical makeup is within the purview of Congress to set, a power they have used 6 times in our nation's history.
In 1789 when the Court was established the number was set at 6 ( 1 Chief Justice and 5 Associates). In 1807 that was changed to 7. In 1837 it was increased to 9 and in 1863 to 10.
In 1866 Congress passed a law that instituted a moratorium on new appointments until attrition brought the number down to 7. This was a purely political move to prevent Andrew Johnson, the first POTUS to be impeached (but not convicted), from making any appointments to the Court.
In 1869, during U.S. Grant's administration, attrition dropped the number to 7 and Congress increased the number to 9, where it remains. So, to state the obvious, Congress can change the number of Justices as they see fit.
There is the "excepted reality" that the SCOTUS is the final, incontestable authority over all law passed by Congress. Far from the truth, as the 109th Republican Congress established in H. R. 4379, To limit the jurisdiction of the Federal courts, and for other purposes..
The Congress finds the following:
(1) Article III, section 1 of the Constitution of the United States vests the judicial power of the United States in `one Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish'.
(2) Article I, section 8 and article 3, section 1 of the Constitution of the United States give Congress the power to establish and limit the jurisdiction of the lower Federal courts.
(3) Article III, section 2 of the Constitution of the United States gives Congress the power to make `such exceptions, and under such regulations' as Congress finds necessary to Supreme Court jurisdiction.
(4) Congress has the authority to make exceptions to Supreme Court jurisdiction in the form of general rules and based upon policy and constitutional reasons other than the outcomes of a particular line of cases. (See Federalist No. 81; United States v. Klein, 80 U.S. (13 Wall.) 128 (1872)).
(5) Congress has constitutional authority to set broad limits on the jurisdiction of both the Supreme Court and the lower Federal courts in order to correct abuses of judicial power and continuing violations of the Constitution of the United States by Federal courts.
(6) Article IV, section 4 of the Constitution of the United States guarantees each State a republican form of government.
(7) Supreme Court and lower Federal court decisions striking down local laws on subjects such as religious liberty, sexual orientation, family relations, education, and abortion have wrested from State and local governments issues reserved to the States and the People by the Tenth Amendment to the Constitution of the United States.
(8) The Supreme Court and lower Federal courts threaten the republican government of the individual States by replacing elected government with rule by unelected judges.
(9) Even supporters of liberalized abortion laws have admitted that the Supreme Court's decisions overturning the abortion laws of all 50 States are constitutionally flawed (e.g. Ely, `The Wages of Crying Wolf: A Comment on Roe v. Wade' 82 Yale L.J. 920 (1973)).
(10) Several members of the Supreme Court have admitted that the Court's Establishment Clause jurisdiction is indefensible (e.g. Zelamn v. Simmons-Harris, 536 U.S. 639, 688 (2002) (Souter, J., dissenting); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J. concurring); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 399, (1993) (Scalia, J. concurring); and Committee for Public Ed. And Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting).
(11) Congress has the responsibility to protect the republican governments of the States and has the power to limit the jurisdiction of the Supreme Court and the lower Federal courts over matters that are reserved to the States and to the People by the Tenth Amendment to the Constitution of the United States.
Although unsuccessful, the bill spells out the Constitutional authority that Congress has over the SCOTUS - their power is nowhere close to absolute. (remember this was written by Republicans)
The final "excepted view" is that the Constitution dictates lifetime appointment of Justices. The Constitution says only, "...The Judges...shall hold their Office during good Behavior,..." There is no mention of lifetime appointment - lifetime appointment is a tradition not a Constitutional mandate. Congress can limit that Office to a ten, fifteen or twenty year term if they so desire.
I would not suggest packing the Court by increasing the number of Justices as FDR attempted in 1937, as I believe it would set a dangerous precedent. The point is not to destroy the authority of the Court, but rather to minimize the influence of extreme ideology- of any flavor.
Placing a term limit on the office would help. And, the authority to declare acts of Congress unconstitutional should require a 7-2 vote, not a simple majority. Taken together I believe extreme ideological judgements could be significantly reduced.
Democratic control of the Executive and Congress with a filibuster proof majority in the Senate (or a willingness to be labeled hypocrites and use the "nuclear option") could bring those changes.