AMAC Exclusive – By Seamus Brennan
The Supreme Court has received no shortage of media attention in recent months—from the upcoming Dobbs v. Jackson Women’s Health Organization abortion decision, to Justice Stephen Breyer’s retirement, to the impending confirmation of Judge Ketanji Brown Jackson. But amid the media frenzy surrounding upcoming cases, a major development regarding the future of the Court itself has gotten suspiciously little coverage: namely, an acceleration in Democrats’ ongoing plans to pack the Court with additional left-wing justices.
Few Americans were even aware of the release of the report from President Joe Biden’s Commission on the Supreme Court last December, as Democrats and Court-packing proponents no doubt intended. The handful of outlets that did cover the report, however, did so in a way that distracted from or outright ignored its more radical findings and recommendations. NPR, for instance, wrote that the report “steers clear of taking a position.” CBS News similarly claimed that the Commission “stopped short of recommending structural changes to the Supreme Court”—painting the report as a series of noncommittal findings that pose no threat to the federal judiciary. Even the report itself asserts that it does not “purport to resolve any of [the] differences” among Commission members regarding proposed reforms to the Court.
Yet, the content of the report—and in fact, the very existence of the Commission—suggests this danger is indeed real. Although the report eschews explicit recommendations regarding the makeup of the Court, it is full of language, analysis, and “arguments” that are virtually impossible to interpret in any way other than laying the groundwork for expanding the Court at some point in the near future. As conservative lawyer Ian Huyett wrote for The American Mind, Biden’s Commission stands “under a false veneer of detached scholarship” that could quite easily lead to a progressive “totalitarian regime” that would wholly undermine the rule of law.
Among the few clear conclusions reached by the Commission was that its members disagreed on “whether adding Justices to the Supreme Court at this moment in time would be wise” (emphasis added). Notably, the Commission did not make a judgment on whether adding justices would or would not “be wise” more generally—instead, their findings are only applicable to “this moment in time.” By limiting the scope of the Commission’s decision to “this moment,” the report intentionally leaves the door open to packing the Court in the future, whenever the Commission decides it is in fact “wise.” As Huyett observes, this statement is “a meaningless disagreement evidently touted to confer legitimacy on the Commission’s conclusions.”
“By framing Court-packing as—at worst—the violation of a mere ‘norm,’” he continues, “the Commission has attempted to ensure that any future Court-packing debate will begin with Democrats on the high ground.”
The report also makes several mischaracterizations of previous changes to the Supreme Court, including the 1807 and 1837 expansions of the Court’s number of seats. Though these changes were made almost entirely for procedural reasons (largely in response to the growing number of circuits and other provincial concerns), the Commission nonetheless categorized these reforms as deriving from “political concerns” with little acknowledgment of the historical circumstances most responsible for increasing the Court’s number of seats.
The report also misleadingly quotes figures involved in 1950s Court-packing debates—ostensibly to overstate their support for expanding the nine-seat federal bench, even when it is readily apparent that they did not (most notably, the report painted the motivations of Senator John Marshall Butler, who introduced legislation to permanently keep the number of Supreme Court justices at nine in 1953, as being in support of “broad formal power to expand or contract the Supreme Court”). This deceptive wordplay once again calls the Commission’s motives, transparency, and supposed lack of a “position” into question.
The Commission’s thinly veiled ulterior motive is a continuation of a long-established pattern among Biden and other high-profile Democrats of downplaying the left’s quest to pack the Supreme Court with progressive ideologues—even though their real intentions are painfully clear to the American people.
Biden himself infamously side-stepped the question throughout his 2020 campaign, claiming that “you’ll know my opinion on Court-packing when the election’s over.” Then-candidate Kamala Harris similarly refused to weigh in on the matter during the 2020 vice presidential debate. Instead, former Vice President Mike Pence stated the obvious: “If you haven’t figured it out yet,” he said, “the straight answer is they are going to pack the Supreme Court.”
Conservatives should not be fooled by the evasive language of the Commission’s report. Instead, they should see the report for what it is: an effort to normalize the practice of Court-packing in the eyes of Americans as well as an attempt to validate future efforts to expand the Supreme Court by a Democratic president.
For anyone who cares about an independent judiciary, the separation of powers, and the American constitutional order, nothing could be more worrying.