Shortly after the Civil War the Supreme Court had seven members. President Ulysses Grant had a piece of legislation he wanted passed, but SCOTUS nixed it on a 4-3 vote. So Grant nominated – and got – two sympathetic justices added to the court, returning it in 1869 to nine justices where it has been ever since. The legislation, a divisive partisan measure, hit the court on a second try. This time it passed constitutional scrutiny with its new majority.
The Daily Argus of Illinois was outraged. This “attempt to pack the Supreme Court to secure a desired judicial decision brought shame and humiliation.”
In 1937 President Franklin Roosevelt tried packing the court for precisely the same reason – to secure desired judicial decisions for his New Deal. Roosevelt, of course, claimed the “packing” was intended to achieve a more efficient court; a more thoughtful court. The Senate, including fellow Democrats, saw through FDR’s rhetoric and defeated the effort on a vote of 70-20.
The Constitution does not specify the size of the court, but with nine members it has served the nation well for 152 years, longer than any other membership configuration.
Now, to the horror of “liberals,” it is ideologically split with six conservative members and three “liberal” members. Predictably “liberals,” who thought it just dandy when the court was “liberal,” have launched a movement to change the rules, to pack the court with more “liberal” members. Congressional “liberals” claim their only purpose is to “restore equilibrium,” but that’s a lie. They simply realize that the only way they’ll get their Leftist agenda passed is to neutralize the court by putting more Left-leaning justices on it so they can secure transformative judicial decisions.
President Biden’s problem is two-fold: (1) he has spoken out in the past against increasing the number of justices, and (2) changing the number of justices requires congressional action and he can’t simply order that legislation. He has to pretend he needs to see the results of careful study before he openly moves to pack the court.
It’s kind of like the corrupt Old West sheriff who tells the prisoner, “Sure, we’ll give you a fair trial. Then we’ll hang you.” So it is with Biden: “Sure, we’ll study the matter. Then we’ll pack the court.” So he ordered the creation of a 36-member “bipartisan” commission to study the issue.
It’s a charade. This commission’s final report, due in six months, will be an exercise in fill-in-the-blanks. It’s not charged with making recommendations, but it is utterly incomprehensible that it will conclude the court is just fine the way it is; that no changes are needed.
Speaking out of both sides of his mouth has never been a problem for Biden. In a 1983 Senate speech – when Ronald Reagan was president and Republicans had a 5-4 court majority – he spoke of Roosevelt’s attempt to pack the court. “It was a bonehead idea,” he said. “It was a terrible, terrible mistake to make, and it put in question for an entire decade the independence of the most significant body . . . in this country, the Supreme Court of the United States of America.”
As recently as 2019 he said, “I’m not prepared to . . . try to pack the court because we’ll live to rue that day.”
The perils of court packing are obvious and in 2019 Biden admitted it. Every time the court became conservative-dominated (like now) “liberals” claimed the “court needs to be realigned.” To that Biden said, “We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
Sen. Lindsey Graham (R., S.C.) knows it, too. “If successful,” he said, “this [court packing] would inevitably lead to changing the number of Supreme Court justices every time there is a shift in power.”
Even “liberal” Supreme Court Justice Stephen Breyer sees court packing as folly. In a speech at the Harvard Law School earlier this month he said those who want to pack the court to bring about a desired alignment should “think long and hard before they embody those changes in law.”
He further noted the court’s bedrock foundation is “a trust that the court is guided by legal principle, not politics. Structural alteration motivated by . . . political influence can only . . . further erode that trust.”
Sen. Ed. Markey (D., Mass.), a sponsor of a bill to add four justices to the court, has engaged in vicious, eye-rolling hyperbole in addition to the ludicrous “we just want to restore equilibrium” propaganda. Republicans, he said, “stole the majority.” And the confirmation of Amy Coney Barrett to the court completed “their crime spree.” Republicans, he said, have “politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans.”
What about that commission? Calling it bipartisan is deceptive. It has 36 members, but that can mean anything from 18 Democrats and 18 Republicans or 35 Democrats and 1 Republican. We do know it will be led by Bob Bauer, White House counsel under Barack Obama. Joining him is Cristina Rodriguez, from Obama’s office of Legal Counsel; Walter Dellinger, Supreme Court lawyer for the government during Bill Clinton’s administration; Lawrence Tribe, already on record as supporting packing the court; and Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.
While Markey rants, Biden is counting on this commission providing him with political cover so he can pass the buck to it. He and the Socialist wing of his party are desperate to embrace FDR’s “bonehead idea.” With the commission’s predictable report in hand he can claim that “after careful study” he has to go along with its Democrat-favoring counsel.
Rahm Emanuel, Obama’s chief of staff and former Chicago mayor, scolded Georgia’s Republican legislators for changing the state’s election laws in a way he claims, without evidence, that favors the election of Republicans. Would they have done this, Emanuel said, if the state had not just gone Democratic in the presidential election and elected two Democrats to the Senate? Right back at you, Rahm. Would you and your fellow Democrats now be seeking to pack the Supreme Court if it was split 6-3 in favor of “liberals”?
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