New Battlefront for Court Packing: Biden’s Commission Faces Major Obstacle—The Constitution

December 17, 2021
Fli Insider | Court Packing New Challenge

by Jeremy Dys • 5 min read

After more than six months of deliberation, the Presidential Commission on the Supreme Court of the United States adjourned with little fanfare in early December. The clear, but perhaps unintentional, message of the Commission’s report is that the Constitution continues to protect our civil liberties generations after its adoption.

All that one would expect from an administrative report written by academics and government bureaucrats is present: hundreds of pages consumed with over-explaining concepts with no chance of becoming a political reality, all while deftly avoiding taking any definitive position on much of anything.

Yet, the report inadvertently revealed the beauty of our Constitution and the foresight of its authors. At nearly every turn, the authors seem frustrated that the pesky Constitution stood in the way of remaking one of America’s three co-equal branches of government.

Want to add Justices to the Supreme Court? Well, the Constitution may theoretically allow for that, but the “checks and balances” offered by its sister branches of government make that politically unpalatable.

Thinking of adding limits to the terms of the Justices or imposing a mandatory retirement age? Then one must impose a Constitutional amendment to alter the language of Article III providing federal judges with tenure “during good Behaviour”—which is to say, for the rest of their lives.

On it goes and when the Commission fails to get around that great, written defender of our civil liberties, they invent new ideas. For instance, they seriously propose splitting the Supreme Court up into “Senior Justices” and “Junior Justices,” the former given to hearing cases of “original jurisdiction” in the Supreme Court and the latter all the rest (the grand majority of appeals).

Not only is such an idea unworkable, but the way it conveniently allows the far-Left to leapfrog new, more liberal Justices over conservative stalwarts like Justice Clarence Thomas is laughably obvious.

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While the report appears to give relief to those concerned it would lead to an all-out war to remake the Supreme Court, the attacks will continue.

Indeed, just two days after their tenure on the Commission ended, Judge Nancy Gertner and Professor Laurence Tribe—both dedicated progressive liberals—wrote in The Washington Post, “Offsetting the way the court has been ‘packed’ in an antidemocratic direction with added appointments leaning the other way is the most significant clearly constitutional step that could be taken quickly.”

Even U.S. Sen. Elizabeth Warren recently called on Congress to fully embrace expanding the Supreme Court. In an op-ed published in The Boston Globe this week, the Massachusetts Democrat called it a “broken institution.”

Thus, on the issue of court-packing, the Left has not agreed to an armistice; we have rebuffed their first all out effort, but they have announced they will be coming again.

Efforts to pack the court will continue in new, more shrewd ways. President Biden will continue to be pressed to expand the membership of the Supreme Court out of retribution for President Trump’s nominations. Members of Congress such as Reps. Jerry Nadler and Hank Johnson will continue their efforts to tip over SCOTUS by means of legislation that adds their political preferences as Justices.

So, our response must shift accordingly. Hundreds of thousands have visited over the last year, joining with First Liberty to submit public comments opposing efforts to pack our courts. Those comments clearly made an impact, holding off the initial threat posed by this Commission.

But make no mistake: the Left will not relent. A full on push for court-packing will come immediately, if Roe v. Wade is overturned this spring. It is not the system’s structure or the number of Justices that sit on the Supreme Court with which the Left has a problem. It is that federal judges and Supreme Court Justices have rediscovered their commitment to upholding the guarantees of the Constitution—most especially the freedom of religion enshrined in our First Amendment.

Over the centuries, new citizens to this country, those who hold public office, and those who serve in our military have pledged to “support and defend the Constitution.” As we have seen that Constitution now defend us, so must we continue its support and defense as we extend its “Blessings of Liberty” to “ourselves and our Posterity.”

Religious Liberty is the Cornerstone | First Liberty

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