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No reason to pack the court

July 15, 2021

By Jermey Dys, Senior Counsel

Perhaps the U.S. Supreme Court is not as ideologically tilted as some have led the country to believe. Members of the “Presidential Commission on the Supreme Court of the United States” should take notice.

When Justice Anthony Kennedy retired and former President Trump nominated Brett Kavanaugh to the court, progressives decried and slandered the nominee. Leftists bemoaned the loss of the centrist Justice Kennedy and predicted that a Justice Kavanaugh would lurch the Supreme Court to the ideologically extreme right.  

When Justice Ruth Bader Ginsburg died weeks before the 2020 election, progressives went into full panic mode with their opposition to nominee Amy Coney Barrett. Even senators posted oversized pictures of children who almost certainly would lose their health insurance coverage because, we were assured, a Justice Barrett would cast the deciding vote against the Affordable Care Act.

It turns out that claims of the court’s center-left demise have been grossly exaggerated. Data from the most recent term indicate that the court’s makeup proves that even on some of the most controversial matters, justices appointed by Presidents Bush, Clinton, Bush, Obama and Trump are rarely divided into ideological extremes.

According to the “Stat Pack,” released by SCOTUSBlog, of the 55 opinions authored in the last term, the justices were unanimous in 26 — or 43 percent of the time. That means all nine justices agreed nearly half of the time. Just 15 percent of the time were the justices split into supposedly ideological lines.

Add to those seven more times when only one justice broke from the majority for an 8-1 decision and 16 more times when the vote was either 7-2 or 6-3, both of which are considered to be strong majorities.

On supposedly controversial matters, there really was little disagreement. For example, on Dec. 10, 2020, the justices handed down Tanzen v. Tanvir, a case adjudicating the controversial Religious Freedom Restoration Act(RFRA). We were told to expect a sharply divided court, but that turned out to be wrong. All but Justice Barrett, who did not take part in the case, voted to uphold the principles of RFRA under examination. That means Justices Samuel Alito and Sonia Sotomayor found a path to agreement on the issue of religious freedom.

Most court-watchers thought Fulton v. City of Philadelphia would be the most divisive of cases of the term. It squared the religious liberty of Catholic Social Services against the pro-LGBT+ policies of Philadelphia. Again, all the justices found a path to unanimous agreement that a Catholic-run adoption and foster care agency were not the religious bigots the left had made them out to be. That means Justice Clarence Thomas, appointed by George H.W. Bush, agreed with Justice Elena Kagan, an appointee of Barack Obama, and Justice Barrett, Trump’s appointee, voted with Bill Clinton’s nominee, Justice Stephen Breyer.

And, remember the fear during Justice Barrett’s confirmation hearings that she would vote to end ObamaCare? That didn’t happen. In an 8-1 decision, only Justice Neil Gorsuch dissented.

The sky has not fallen. Our democratic republic remains strong. And we should not trust anyone to predict the outcome of future Supreme Court decisions or listen to fearmongering.

Perhaps PresidentBiden should disband the Presidential Commission on the Supreme Court of the United States. It is yet another government commission in search of a problem. The Supreme Court is functioning as it should, with justices more often in agreement than not. Partisan efforts to manipulate the court and reduce its independence should be rejected.

In 1937, the Senate Committee on the Judiciary — composed of seven Democrats and three Republicans — issued a report recommending the rejection of Franklin Roosevelt’s court-packing proposal. It was another unanimous decision, this time rejecting FDR’s scheme to pack the court (not unlike today’s commission). The Senate committee declared that partisan court reform measures, such as court-packing, “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Yet, here we are, presented once again with demands to “reform” what is not, and never has been, in need of reform. As the last safeguard for civil liberties, our independent judiciary is essential. No one should politically tinker with the judiciary — what the senators in 1937 called “the priceless heritage of every American.”

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

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