In the News

The Left’s Court-Packing Campaign is Stuck in the Mud

November 24, 2021

By Jeremy Dys, Senior Counsel

After a year of agitation, the radical Left should take a step back and assess the progress of its campaign to pack the U.S. Supreme Court with partisan ideologues.

It’s gone nowhere. Things are so bad that, ahead of what should have been its final public meeting last Friday, the Presidential Commission on the Supreme Court of the United States decided for itself that it needs more time to deliberate before issuing its report.

More time may help the president’s progressive base force down a bitter political pill, but it will not change the fact that Americans just want their judicial system left alone.

According to the Wall Street Journal, a Mason-Dixon voter poll shows that only 24 percent of voters support expanding the Supreme Court from nine to 12 or more seats to alter its partisan political balance. The poll, commissioned by First Liberty Institute, surveyed 1,100 registered voters nationally between Nov. 3-6. A previous poll, also released in the Wall Street Journal, showed just 22 percent of voters favored court-packing.

For all of its bleating about a conservative Supreme Court running roughshod over American democracy, the radical Left has barely moved the needle in its months-long court-packing campaign.

Opposition to court-packing—or “court expansion” as the commission now wishes we would call it—was strongest among Republicans (88 percent) and independents (64 percent). But even registered Democratic voters showed weak support. Some 44 percent of Democrats polled by Mason-Dixon opposed court-packing, with only 41 percent in favor.

The poll numbers are not great news for President Joe Biden‘s commission, as it prepares its final report on various reform measures. Even Biden has indicated that he’s “not a fan” of court-packing.

“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden said in an interview just before the 2020 election. “Presidents come and go. Supreme Court justices stay for generations.”

Although a flip-flop is always possible, Biden may endorse less radical recommendations from his Supreme Court commission. These could include term limits for justices or a mandatory retirement age.

Even for these reforms, support from voters is mixed. The nationwide November polling data showed that voters were split evenly at 47 percent over ending lifetime appointments, with 6 percent undecided. Only Democrats showed majority opposition (56 percent) to lifetime appointments. Most of those polled said lifetime appointments increase the independence of justices.

Voters are generally in favor of term limitations, at least as the term is normally used—a restriction on how long an elected official can stay in office before someone else takes a turn. In the world of politics, term limitations reduce the likelihood of corruption. The opposite may be true if applied to the judiciary. What Alexander Hamilton in FederalistNo. 78 called “periodical appointments” would, if applied to federal judges, “be fatal to their necessary independence.”

The new poll numbers also show weak public support for a mandatory retirement age—an indirect vindication of Justice Stephen Breyer. The 83-year-old member of the Court’s liberal wing has been the target of relentless bullying by radicals who want him to retire and make way for a younger replacement. So far, he has ignored them.

Breyer’s comments in his recent book The Authority of the Court and the Peril of Politics on the need for broad public participation in constitutional democracy are worth considering.

“The Constitution creates methods for resolving differences through participation, through argument and debate, through free speech, through a free press, and through compromise,” he wrote. “Students and adults alike must practice the skills of cooperation and compromise to learn them and to keep them.”

If American democracy is in peril, it’s not due to a conservative Supreme Court but to those who would trample on the rule of law and constitutional norms. For now, the good sense of American voters represents the surest safeguard against that threat.

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

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