Democrats from the House and Senate are introducing bills to expand the Supreme Court’s number of justices. Vox called it a counterbalance to Republican manipulation of the judiciary while the right drew from historical criticism of similar measures in the past.
Summary
Democrats in the House and Senate will introduce legislation on Thursday to add four justices to the Supreme Court, increasing the number of justices from 9 to 13.
- Assuming President Biden has the opportunity to fill these new seats, it would give Democrats and liberals a 7-6 majority on the Supreme Court.
- The move comes despite President Biden’s formation of a commission last week to study the effects of major changes to the federal court system.
- Liberal activists are hailing the legislation and saying they will turn their attention to “put pressure on every Democrat in Congress” to support it as “the only way to restore balance to the Court and protect our democracy.”
- The bill is considered extremely unlikely to become law.
- After liberal Associate Justice Stephen Breyer made comments criticizing plans to re-shape the Court in favor of a liberal majority, liberal activist groups started a public campaign to push for Breyer to retire.
- In a separate event, Breyer was joined by Supreme Court colleagues from the liberal and conservative wings addressing political division, with Associate Justices Sonia Sotomayor and Neil Gorsuch both praising fierce debate as necessary to American discourse without it devolving into hatred and ad hominem attacks.
Beyond Today’s Headlines
- In October of last year, Biden admitted he just did not want to discuss “court packing” on the campaign trail, while saying in 1983 that FDR’s court packing push was a “bonehead idea” even if he had the legal and constitutional right to do so.
- In 2019, the late Justice Ruth Bader Ginsburg said “Nine seems to be a good number” in reference to the Supreme Court.
- Last October, Sen. Dick Durbin attempted to change the definition of “court packing”, saying Republicans have been doing so “for the past three and a half years”, referencing the Senate’s constitutional role in the confirmation process for pre-existing judicial vacancies (not the creation of new seats, which is the actual process of court packing). Dictionary.com apparently later succumbed to Durbin’s effort of making words mean what they don’t actually mean.
- Author’s Note – Like Senate Majority Leader Harry Reid’s nuking of the filibuster to push through judicial nominees for then-President Obama, too many politicians, but particularly Democrat politicians, push institution-altering proposals seemingly without considering the possibility that eventually, the shoe will be on the other foot, and their partisan competitors will be in the majority. As Sen Sanders rightly pointed out, opening this door will give Republicans license to do the same, as Senator McConnell pointed out to Reid in 2013.
- A former editor of the Associated Press wrote for the NY Daily News that while the idea of court-packing is admittedly unpopular, Democrats must pressure Breyer and Justice Clarence Thomas, a conservative member of the Court, to resign, allowing Biden to appoint two liberal justices and reconcile what the author calls the “Great Republican Supreme Court Robbery of 2016.”
- The day before news broke of Congressional Democrats introducing legislation to increase the Supreme Court’s size, Charles Lane criticized the political hand-wringing over Biden’s judicial commission, saying Republican reaction to it is disingenuous while criticizing leftist activists for their treatment of “one of their own”, Justice Breyer. Lane also acknowledged the reality that any court-packing legislation would die in the Senate.
- Vox characterized the legislative effort as a way to “effectively neutralize a half-decade of work by Republicans to manipulate the Senate confirmation process” for judicial nominees, pretending as though Democratic Senator Harry Reid didn’t get rid of the filibuster for a large amount of judicial and executive branch nominees.
- The Daily Wire’s reporting of the development referenced comments by Sen. Bernie Sanders warning Democrats not to engage in court packing, saying “the next time the Republicans are in power they will do the same thing.”
- Conservative blogging site RedState criticized the announcement, collating conservative responses to the measure, while also highlighting a ridiculous tweet from one of the bill’s authors saying “Supreme Court expansion is infrastructure.”
- While Newsmax ran a Reuters wire story on the court packing announcement, former judge and special prosecutor Ken Starr responded to Bidens court commission on Monday by saying it was “a bad idea” and that Biden’s political strength is nowhere near President Franklin Roosevelt’s when FDR attempted the same thing and was rebuffed by a Democrat-controlled Congress.
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© Dallas Gerber, 2021
