Biden’s Court Packing – Likely to Backfire

Franklin Delano Roosevelt was frustrated with a constitutionally centered Supreme Court holding his expansive ideas in check, declaring his overreach unconstitutional.  Brainstorm?  Pack the High Court with political allies, tipping judicial decisions his way, subverting the Constitution.  Huge error. If Biden-Harris and congressional Democrats try this – as they are considering – expect a similar roar-back.

Some will say Biden’s attempt is unlikely, others it will fail, and still others it will succeed – since roughly half the country voted for Biden-Harris and may think “ends justify means.” Truth is probably somewhere between likely attempt and likely failure.

Democrats – led by a leftist cabal guiding a slow president, once a moderate now shadow of his former self – are angling to pack the Supreme Court.  That became obvious last week – as the Biden team appointed a “commission” to “analyze” that issue.

A “commission” fools no one, and the mandate Biden gave is a fast-moving analysis in 180-days, evaluating the efficacy of term limits on justices, court packing, and a sprinkle of history.  The White House says it will “study … structural changes,” including “genesis of the reform debate … Court’s role in the Constitutional system, length of service and turnover of justices… membership and size of the Court, and the Court’s case selection, rules, and practice.”  Pray to tell, why?  Answer:  Political fig leaf, covering the indelicate act of packing the High Court.

Media activists – what else can we call the New York Times – are all over it. Wrote a giddy Times, the panel will “study expanding the Supreme Court in an effort to balance the conservative majority created by Donald Trump.”  Oh my, oops, cat out of the bag!  We have the conclusion already, know the motivation, so what are we waiting for?  Pack the Court!  See, e.g., https://www.foxnews.com/media/new-york-times-frames-biden-scotus-commission-balance-conservative-majority.

The problem is neither constitutional history nor FDR’s scalding experience, let alone modern politics or leading liberal justices, support this court-packing scheme. From a constitutional perspective, most understand the Framers’ aim was balancing three branches, not letting politics run over the judiciary, undermine rulings, gut constitutional provisions, or States’ rights.

For starters, the nine-member High Court configuration has masterfully preserved the integrity of our Federal Government’s third branch, while managing to cultivate enduring citizen respect for constitutional rulings, a critical element in maintaining rule of law in a constitutional republic.

Consistent with the idea that passing time deepens our collective commitment to core principles, institutions, and rulings, we have settled our knottiest constitutional uncertainties – or allowed a nine-member Court to do so – for the past 152 years.

History helps explain why the nine-member High Court – once settled on – stuck.  When our Republic was young, the qualitative point – having a third branch, capped by a High Court – was the key.  How many sat on it was secondary.  For that reason, they left that to Congress.

Article III, Section 1 of the Constitution gives broad discretion to Congress, asking them to match needs to courts. Thus, the section reads: “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.”

By act in 1789, not long after the ink dried on the Constitution, Congress put the number of justices at six.  A dozen years later, in 1801, President Adams rethought that number and imagined keeping rival Jefferson from naming an appointee – dropping it to five.  Venality is not new.  Jefferson returned the number to six, and later to seven, minimizing Court ties.  That configuration lasted 30 years, until Andrew Jackson added two, stabilizing the Court at nine. While post-Civil War partisans reduced it to seven, that gambit did not last, and in 1869 the High Court settled on the number that has stood ever since – nine.

If this notion – a standing precedent for more than 150 years is not enough to give partisan Democrats pause, three other facts should.  First, when FDR angled to pack the court with six justices in 1937, he learned a painful political lesson. People do not like it when you tamper with their institutions.  They do not pay you to be a spoiler, to tend your fire at their expense.  His legislative brainstorm almost sank the administration.  He was opposed by Republicans, leading Democrats, liberal High Court Justices Louis Brandies and Charles Evans Hughes, and the public.  See, e.g., https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices.

So damaging was FDR’s court packing attempt, pulled with face-saving words about pending vacancies and votes, that FDR delayed decisions around entering WWII for fear his political enemies would bite him on the war declaration.  No president since has toyed with the idea.

Another leading fact mitigates against Biden packing the Court.  As in 1937, top liberal justices, not to mention legal scholars, the late Ruth Bader Ginsburg and Justice Stephen Breyer have been clear in opposition to the idea. They see it as a loser.

Breyer’s point is not hard to understand.  In a time when everything is political, when the credibility of all institutions seeking to insulate themselves from politics is questioned, and none of greater significance to the Republic’s than the US Supreme Court, why would anyone want to compromise the Court’s integrity?  After all, that is what toppling a 150-year precedent, making the Court partisan would do.

Breyers’ point is hard to argue.  You can win the battle and lose the war, or you can allow the third branch to maintain independence – which also means not venally term-limiting justices with life terms – and let the Court sort things out, with credibility unencumbered by politics.

Interestingly, if FDR’s precedent holds, level heads will oppose Biden’s political trickery, making the left’s effort an embarrassment – even if the put-up “analysis” says to do it.

Last, one fact may be dispositive.  Any attempt to pack the court not only flies in the face of precedent, FDR’s counterexample, and legal opposition to the craven political move.  The public at large – including institutionally-minded moderates – are often smarter than their leaders. The public is already struggling to accept much of where the Biden-Harris crowd is headed – higher taxes, national debt, and inflation, illegal immigration, social unrest, and international distress.

To add a boulder to the scale is almost certain to inflame what remains of moderate Democrat and Independent support, weighing the party down into 2022 and 2024.  This White House may think they are brilliant.  But odds are, this untimely idea will backfire.