Few issues are as serious as corrupting the spirit of the US Constitution. Few ways of doing that are as pernicious as politicizing the Supreme Court. Yet that is what, apparently, Joe Biden plans to do. Every American should understand this – and six implications. Understanding them could turn the election.
First, our Founders created three co-equal branches, a legislative, executive, and judicial. While related, they were independent, assuring each stayed accountable to the people, no one party in charge, so dictatorship not possible. This preserved individual liberties, for which they had fought a war.
Independence of the judiciary was imperative. Only by keeping that branch above politics – for example, with life tenure – could it fairly adjudicate constitutionality with fidelity to founding principles. If politicized, the process was tainted, tipped, “fixed” in ways that undermined the balance of power.
That is why those who founded our country made clear fundamental rights were God-given, not man-made; independence prevented one branch from corrupting another; and separation of powers mattered. In truth, they distrusted political parties.
Said Alexander Hamilton, military aide to Washington and first Treasury Secretary, political parties might be “the most fatal disease,” as a “faction” (or party) could grab power and undermine the union.
The judicial branch especially must be free from factional domination. James Madison affirmed in the Federalist Papers, America’s “union” checked “the violence of faction,” that is, checked political parties.
Interestingly, Hamilton and Jefferson had opposing views of federal power – Hamilton less fearful, Jefferson more. Still, both served in Washington’s cabinet; faction fell to union. While they founded political parties, neither believed party came before nation, and neither wanted the Judiciary political.
Second, judicial philosophy is different from political philosophy, or should be. The Founders thought the two were different. Today, people talk of a conservative bench, misunderstanding that a judicial conservative is not necessarily a political conservative, although most political conservatives tend to revere history, tradition, and written laws, so tend to be judicial conservatives.
Moreover, for most of our history, “judicial activism” did not exist. Judges tried to apply written laws – statutes, prior holdings, and the Constitution’s words – to facts, period. They were not political.
Of course, that changed last century, explosively 83 years ago, when FDR tried to “pack” the Supreme Court, that is add justices to force favorable political rulings on his New Deal legislation.
This raises a third point. Not only did our Founders insist the Judiciary be independent – to protect minorities and states’ rights – and assume judicial textualism, they never imagined a President and Congress trying to intimidate the American public by taking over the Judiciary.
But shockingly, that is what Biden and Harris aim to do. They favor “packing” the Supreme Court. They refuse to disavow that plan. This week, Biden even said American voters do not “deserve” to know if he will “pack” the Court, until “day after the election.” Strong words and rather weird, those.
Obviously, the idea is to animate the Democrat base, undermine Trump’s choice for the High Court, a Catholic woman named Amy Coney Barret, and make abortion a centerpiece of the 2020 vote, since the Court may review Roe v. Wade, which constitutionalized abortion. Packing is still anti-American.
Fourth, Biden and Harris are way out of their depth. Packing the Supreme Court would fly in the face of the past 150 years of history, during which nine justices sat. The court-packing plan would disown our Founders and offend the spirit of the Constitution, ending independence, politicizing the High Bench.
Damage done would incalculable. The integrity of judicial process, respect for justices and judges, legitimacy of decisions (especially split decisions) from the Court, and downstream effects on law and order, civic institutions, balance of power, and democratic process would be enormous.
Somehow, the anti-constitutional duo does not understand the damage they embrace. Our Republic is fragile. Stability depends on honor and respect – especially for our Judiciary and Supreme Court. If a President disrespects the High Court, let alone injects politics, the outcome swallows any original aim.
Fifth, Biden and Harris are ignorant of history. Eighty-three years ago, FDR thought he was smarter than most. He would whip judicial conservatives, those dared place the Constitution above socialist New Deal legislation – by adding six justices to the Court. That was a huge mistake.
Sobering fact: In 12 years of governing, after four elections (no longer allowed), FDR never made a bigger mistake than trying to “pack” the Supreme Court. When all was done, America rebuked him for the trick. He never lived it down. He delayed entry into WWII fearing the court-packing blunder would cause Congress to cross him. The idea – which seemed clever at the start – nearly ended his career.
So, Biden and Harris are playing with fire. The Founders – and Americans – respect separation of powers. Most would despise a leader who disrespected the Constitution and politicized the Court. Instantly, decisions of the Court would be cheapened, credibility diluted, outcomes contested. The blowback would be swift. Students of history know this. Apparently, none populate Biden’s team.
Finally, Biden-Harris – imagining they can strong-arm a Supreme Court into submission – obviously do not respect the Court, separation of powers, rule of law, or Constitution. Perhaps this is not surprising, as Biden has not practiced law in 50 years, only practiced one year, graduated ninth from bottom, was credibly accused of plagiarism. Harris is not much better, controversies swirling about her legal career.
Bottom line: This idea of packing the Supreme Court is anathema to American democracy, anti-constitutional, anti-American. No serious jurist thinks this a sound idea. Ruth Bader Ginsburg, arch liberal – if friend of Antonin Scalia – disavowed it. Court-packing is an abomination. Biden-Harris – by entertaining it – disrespect our Constitution. Their disrespect should turn the election.