An early harbinger that President Biden would follow the far-left of his party rather than be a moderate leader was his refusal to repudiate court-packing in the 2020 campaign.
Progressive zealots sought to change the ideological direction of the Supreme Court by adding justices.
Biden and Kamala Harris both dodged court-packing questions last October. “You’ll know my opinion on court-packing when the election is over,” Biden told reporters.
In April, Biden appointed a Presidential Commission on the Supreme Court, to study packing the Court. The 36-member group, mostly composed of liberal academics, released a draft report on October 14.
The draft’s main takeaway was criticism of the court-packers, sometimes in strong terms. “Courts cannot serve as effective checks on government officials if their personnel can be altered by those same government officials,” the report says.
This common-sense observation provoked outrage from the court-packing left. Sen. Sheldon Whitehead, the Democratic Party’s leading opponent of an independent judiciary, called the draft “a disappointment.”
But, even if the commission gently advises against court-packing it has given an assault on the Supreme Court undeserved legitimacy.
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Also in April, progressive Democrats led by Sen. Ed Markey, D-Mass., and House Judiciary Committee Chairman Jerry Nadler, D-N.Y., introduced legislation to expand the Supreme Court by four justices. Speaker Nancy Pelosi dismissed this progressive court-packing gambit, refusing to schedule a vote.
Before Biden began his pander to the far-left of the Democratic Party, he was clear on the threat posed by court-packing.
“It was a bonehead idea. It was a terrible, terrible mistake to make. And it put in question, for an entire decade, the independence of the most significant body … in this country, the Supreme Court of the United States of America.”
So said Biden as a senator in 1983 in denouncing Franklin D. Roosevelt’s court-packing scheme in 1937 that would have empowered the president to appoint up to six new justices to the nation’s highest court.
Roosevelt’s plan was never popular with voters, and it provoked intense opposition from Democrats, who controlled the House and Senate, as well as Republicans. Roosevelt’s own vice president, John Nance Garner, was against it.
When the dust settled, FDR suffered a humiliating political defeat.
Most Americans then, and now, recognize that court-packing endangers the country’s constitutional order. Americans today are still overwhelmingly opposed to this dangerous policy.
A recent and credible Mason-Dixon Poll found that 68 percent of Americans oppose court-packing in any form. This includes virtually all Republicans, the overwhelming majority of independents, and a third of Democrats.
The death of iconic-liberal Justice Ruth Bader Ginsburg in September 2000 opened the door for President Trump to appoint now- Justice Amy Coney Barrett, his third Supreme Court appointment. The result was a 6-3 conservative majority on the court.
In the 2020-21 term, Supreme Court justices found common ground on several notable rulings. Those included a 7-2 decision that rejected another major challenge to ObamaCare.
Donald Trump’s “hand picked” justices didn’t deliver him a second term, as Democrats fancifully imagined. Not every case was decided along “party lines.”
Senator Whitehead claimed Justice Barrett would be “a judicial torpedo taking down ObamaCare.” Totally wrong.
Despite Democrats’ fear-mongering, the Supreme Court has yet to produce outcome-oriented decisions.
In a new book on the subject, 83-year-old Justice Stephen Breyer, the Supreme Court’s liberal dean, voices strong opposition to current court-packing efforts. Breyer lashes out at attempts to politicize the Court and undermine public trust.
The late Justice Ginsburg also opposed court expansion saying, “If anything would make the court look partisan, it would be one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who vote the way we want them to.’”
Biden was right the first time: Court-packing is a boneheaded idea.
Jim Hartman is an attorney residing in Genoa, Nevada. Email him at Lawdocman1@aol.com.