April 10, 2021 - 9:01 pm
During the presidential campaign, Joe Biden famously refused to say whether he’d be part of a court-packing scheme intended to ensure that the Supreme Court looked the other way on constitutionally dubious progressive initiatives. Eventually, Mr. Biden said that, if elected, he’d appoint a commission to study the issue.
On Friday, the president signed an executive order creating such a panel. Ironically, the move comes just days after one of the Supreme Court’s liberal members warned against expanding the number of justices to achieve policy goals.
“It is wrong to think of the court as another political institution,” Justice Stephen Breyer said last week in remarks at Harvard Law School. “And it is doubly wrong to think of its members as junior league politicians.” He added, “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Justice Breyer, a 27-year veteran of the court, also argued that the court is not a political body despite efforts to make it one. Differences among the justices are based on differing judicial philosophies and constitutional interpretations, he said.
It’s true that the Constitution is silent on the number of Supreme Court justices — leaving that to Congress — although the panel has been comprised of nine jurists since 1869. But the progressive push to add as many as five justices is grounded in the same short-term thinking that led Senate Democrats to eliminate the filibuster for federal judicial nominees only to deeply regret the move three years later when they lost control of the upper chamber and the White House.
For four years Democrats mewled incessantly about the danger Donald Trump posed to the nation’s political and democratic institutions. Yet now they openly talk about rewriting the First Amendment, ending minority protections in the Senate, adding states for the sole purpose of cementing Democratic majorities and packing the U.S. Supreme Court. There’s even a line of progressive thinking which argues that the “undemocratic” Senate itself should be eliminated because it gives small states equal representation with large ones.
Exactly who is the real threat to America’s political institutions? And where’s the “moderate” Joe Biden who preached unity and was supposed to put the brakes on his party’s rapid lurch to the left?
Mr. Biden’s judicial panel will have 180 days to meet and includes 36 members, most from academia and the legal field. Although there are a handful of conservative or libertarian scholars on the commission, left-leaning philosophies dominate among the members. While court-packing will be its primary focus, the board will examine other issues, such as term limits for federal and Supreme Court justices, who currently receive lifetime appointments.
The New York Times reports that the “group will avoid making any recommendations to Mr. Biden or lawmakers. Instead, the panel … will produce a research paper designed to be an authoritative analysis of the issue. The goal … is not to settle on an answer, but to provide Mr. Biden, members of Congress and the public an evaluation of the risks and benefits of making changes to the court.”
Whether all this is simply show designed to quiet the vocal hard left that now dominates the Democratic Party or whether the commission will actually lay the groundwork for overhauling the nation’s judicial system remains to be seen, of course. By all means let’s have a debate on the wisdom of ramming through a radical judicial reform grounded in hyperpartisan politics that polls show a healthy majority of Americans oppose. After all, how much political risk can the Biden administration tolerate heading into 2022 with an evenly split Senate and a tiny House majority?