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Court-packing: The left mounts a pincer movement

August 12, 2021

By Jeremy Dys, Senior Counsel

With prospects for court-packing growing ever dimmer, President Joe Biden’s Supreme Court study commission trundles on.  Like some law school debate society, the scholars and activists on the commission continue to cross swords on various reform proposals that are months away from any reality check by Congress or the American voter.

Biden’s refusal to eliminate the Senate filibuster defuses the Democrats’ main weapon to push through their radical agenda — including court-packing — with brute force politics.  “There’s no reason to protect it other than you’re going to throw the entire Congress into chaos and nothing will get done,” the president opined.  “Nothing at all will get done.”

Biden has also made it known that he’s “not a fan” of court-packing and in the past has described it as a “bonehead idea.”

Stymied at the Supreme Court level, the radical left is pivoting to Plan B: pack the federal Judiciary from the bottom up with like-minded ideologues.  House Democrats introduced a bill to add more than 200 judgeships, even though the Judiciary’s own study  calls for only 79 new lower court judges to handle growing caseloads.  The goal is the same: destroy the independence of the Judiciary and put all political control in the hands of Congress and the White House — where the levers of power are in Democrats’ hands.

How to address vacancies in the district and appellate courts?  It’s easy if you don’t politicize it.  Fill existing vacancies first.  Then wait for COVID stay orders to be lifted before resuming normal operating tempo.  If neither of those measures works, then increase the number of magistrate judges before increasing district and appellate judgeships.

Still, the Democrats’ glittering dream of an expanded Supreme Court dies hard.  While some members at the most recent Supreme Court commission meeting delivered frothing-at-the-mouth left-wing tirades that might make an MSNBC host blanch, some progressives clearly side with Biden that packing the Court and demolishing the independence of the federal Judiciary is, indeed, a very bad idea.

Constitutional theory — meet political reality.

In his written statement to the commission, Duke law professor Neil S. Seigel, who is also an adviser to Senate Democrats, asserted that there are “no good-government reasons for expanding the size of the Court at this time.”  Not even the “stark politicization” of the nomination process by Senate Republicans (eliding the Bork, Thomas, and Kavanaugh nominations) would justify expanding the Court, he said.

“Regardless, Court-packing remains an extreme act — a break-the-glass-and-pull-the-lever- only-in-case-of-emergency sort of act,” Seigel continued.  “Court-packing would significantly undermine the Court’s independence and, in almost all circumstances, risk its legal and public legitimacy.  Undermining the Court’s legitimacy would in turn impair its ability to perform critical functions that no other governmental institution in the United States is likely to perform more effectively.”

Those addressing the commission have proposed various measures that stop short of court-packing, including term limits.  While a constitutional amendment to put term limits in place, however unlikely that is, would be legitimate, congressionally imposed limits would not be, according to Georgetown University law professor Randy E. Barnett.  He worries about justices angling for jobs in the private sector or in academia after their terms expire and said the “promise of a payday upon completion of service” could influence rulings and prejudice relationships with lawyers appearing before the Court.

“The lesson here is if people are unhappy with the judicial philosophy of the Supreme Court, our system requires that they organize in one of our two major political parties to affect this selection process,” Barnett said.  “This is what happened in the Republican Party.  Members of that party’s coalition organized to change the direction of the Court by making judicial philosophy a plank of that party’s platform.  This is how such change was accomplished by political progressives in the 1930s and into the 1940s.”

During his July 20 Zoom session with the commission, Barnett rejected court-packing in no uncertain terms.

“Any such proposal would end the Court’s independence, destroy it as a protector of our rights and liberties, and greatly increase partisan polarization,” he said.  “To these policy arguments, I’ll add one more.  Partisan court-packing is unconstitutional.”

The study group, technically known as the Presidential Commission on the Supreme Court of the United States, has been directed to issue an “appraisal of the merits and legality of particular reform proposals” in a report to be delivered later this year.  Its recommendations are not binding on Congress, and Biden is free to ignore any or all of it.

But the commission could save itself a lot of trouble simply by reissuing the 1937 report from the Senate Committee on the Judiciary, comprising seven Democrats and three Republicans who demolished President Franklin Delano Roosevelt’s reckless court-packing plan.

In an echo of the current canard by the radical left that the Supreme Court has been captured by right-wing extremists, the New Deal senators scoffed at the claim by Roosevelt’s court-packers that a “reactionary oligarchy” on the Court was defying the will of Americans.  Court-packing, the 1937 Judiciary Committee concluded, was merely a device for Congress to overrule the justices and advance a political agenda.  “When such a principle is adopted, our constitutional system is overthrown!” the senators concluded.

Court-packing — a bonehead idea then, a bonehead idea now.

Note: This article was first published on American Thinker and is re-published here with permission. The article presents the main points of an op-ed published in American Thinker. This work was authored by Jeremy Dys. The full article can be found on the American Thinker website, here.

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