Packing the Court: Why Joe Biden Can’t Commit


by Daniel Lazare, Strategic Culture:

The latest issue roiling the U.S. presidential race is the Supreme Court and what to do if it bucks the wishes of the ruling party. The reason is the Amy Coney Barrett nomination, which, assuming it goes through, could result in a 6-3 conservative majority lasting well into the 2030s.

Since this would spell doom for a Biden-Harris administration, Democrats have come up with what they think is a perfect solution. It’s called packing the court, and it entails expanding “the Supremes” from nine to fifteen members in order to fill the ranks with liberals guaranteed to toe the party line.


It’s neat, clean, and constitutional since nowhere do the framers specify how many justices the court must have. So there’s nothing standing in the Democrats’ way once they wrack up enough House and Senate seats. But if it’s so simple, why are Joe and Kamala continuing to stonewall whenever reporters ask what they’re going to do? Instead of dodging the court-packing issue, why don’t they embrace it as the obvious answer to all that ails them?

The reason is clear. They won’t commit because they’re afraid of two things. One is that voters won’t like it while the other is that court-packing will take whatever is left of America’s tattered 233-year-old constitutional tradition and reduce it to zero.

This might not be such a bad thing given that America’s museum piece of a constitution should have been replaced generations ago with something more democratic and up to date. But it’s not what Biden and Harris want since, as federal office-holders, they’re sworn to defend and uphold it as it currently exists. And it’s probably not what “we the people” want either, at least not at the moment, since no one has given a thought to how to replace it or what to replace it with.

The last president who tried packing the court was Franklin D. Roosevelt in 1937. It did not go well. After watching the Republican majority gut one New Deal economic initiative after another, FDR figured that the moment for a showdown had finally arrived with his landslide victory in the 1936 election. Early the following year, therefore, he unveiled a plan that would allow him to appoint half a dozen justices up front and then keep on adding pro-New Dealers in the years ahead. Since Democrats had a solid lock on Congress, everyone expected the scheme to sail through effortlessly.

Everyone was wrong. The public was appalled at Roosevelt anti-judicial assault, and the Senate ended up voting it down by a margin of 70-20. More than a setback for the Roosevelt administration, it proved to be “a humiliating defeat from which it never fully recovered,” according to the historian Alan Brinkley. FDR set out to save the New Deal, but ended up sinking it beneath the waves.

Even a cipher like Biden knows not to make the same mistake twice. But what makes the move even more unlikely is the aura of sanctity that has grown up around the court in the decades since.

This was most unexpected. Roosevelt’s famous quip about “nine old men” perfectly captured the idea of the court as a representative of the stuffy old order that the New Deal was determined to overthrow. The public didn’t disagree either even if it was taken aback by FDR’s methods. But then a funny thing happened on the way to the dethronement. In response to pressure from both the White House and the march of world events, a former Tory stronghold began moving leftward to the point where, by the 1950s, it all but defined the liberal vanguard.

Democrats promptly changed their tune. Instead of excoriating the court, they showered it with praise as it outlawed school segregation, approved birth control, mandated one person-one vote (if only at the state and local level), and legalized abortion in 1973 with Roe v. Wade. Martin Luther King summed up the mood during the Montgomery, Alabama, bus boycott in 1955. “If we are wrong, the Supreme Court of this nation is wrong,” he intoned. “If we are wrong, the Constitution of the United States is wrong. And if we are wrong, God Almighty is wrong.” A new holy trinity was born, one consisting of God, the Constitution, and Earl Warren, chief justice from 1953 to 1969. The cult continued right up to Saint Ruth Bader Ginsburg, she of the lace colors, oversized glasses, and legions of fervent feminist followers.

Faith like this is not something you can switch on and off like an electric light. After decades of judicial worship, the Democrats can’t turn around and announce that their idol has feet of clay merely because a rightwing Catholic is about to ascend to the bench.

So they’re stuck. For the sake of argument, however, imagine that Democrats pass a court-packing bill next year regardless and promptly appoint six new members, all paid-up members of the ACLU. What happens next?

You guessed it. The next time Republicans are in office, they’ll do the same. So will the Dems once the pendulum shifts their way again. Then, as the court expands from fifteen members to twenty-five, forty, or even more, any and all pretense of constitutional analysis will fall by the wayside. Instead of interpreting the document, justices will give it a quick glance and announce that it says whatever the voters want it to say.

Arguably, this is what the court has been doing for years regardless of all that mumbo-jumbo about original intent and the like. But if that’s the case, why bother with the Constitution at all? Why not just chuck the document altogether and announce that, regardless of what the founders said in 1787, “we the people” have the sovereign right in the here-and-now to do whatever we think necessary to form a more perfect union, establish justice, and insure domestic tranquility? No true small-d democrat would disagree, so why not just do it?

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