We’ve known for a while now that Joe Biden plans to pack the Supreme Court with more ideologically friendly justices. Though he hemmed and hawed on the topic as a candidate – knowing full well how controversial it is – he wasted no time as president declaring his intention to “study” the Court for the sake of reform.
As of April 9, it’s official: Biden signed an executive order (EO) that establishes a commission to study the Court and make recommendations of ways to reform it, if needed. Just like FDR’s claim that SCOTUS needs young blood to operate at full speed, this is no more than a naked attempt to get Congress on board for court packing. But can the new president succeed where his ideological predecessor failed?
As pointed out by LN’s Graham J. Noble: “for Democrats, the most logical way forward is to pack the court at the first opportunity.” Noble wrote those words in September of 2020, after President Trump’s successful nominations filled multiple SCOTUS vacancies, making the idea of court packing once again a hot topic. So is this the “first opportunity” Noble spoke of? Joe Biden is president, Kamala Harris is vice president – the tiebreaker for a Senate split 50-50 between the parties – and the Democrats have a firm grip on the House.
Biden’s No FDR
What Biden doesn’t have is FDR’s popularity amongst the people at the time of that original court packing scheme or the insane majority in Congress – a 68-25 lead for Democrats in the Senate and 309-113 in the House, 75% and nearly 74% majorities, respectively. Even with this level of control, Congress by and large didn’t want to pack the Court. When SCOTUS flip-flopped on social welfare and started playing ball, it gave a reluctant Congress a way out of passing the bill – but it came at a high cost to both the Court and the Constitution. Though he “lost” the battle over court packing, FDR won the war on how the Supreme Court interpreted certain parts of the Constitution, as well as how much power a popular president might have over the judiciary under the right circumstances.
A Committee of Farce
According to Biden’s EO, the commission will prepare within 180 days a report for the president that includes the following:
- An account of the debate over the Supreme Court, specifically how it operates and how the president nominates justices.
- The historical background of other times when these processes were “subject to critical assessment and prompted proposals for reform” – put more clearly: other times court packing was discussed.
- An analysis of the arguments in the modern public debate for and against Supreme Court reform.
Liberty Nation Legal Affairs Editor Scott D. Cosenza explained why the idea of such a commission is so ridiculous when Biden first suggested it. “What ‘reforms’ might be on offer for the Supreme Court? There can be only one – adding justices,” he wrote. “All rules for how the Supreme Court operates are determined by the Constitution itself or Court-made regulations. That’s how it can exist as a co-equal branch.”
As explained in a statement from the White House, the purpose of this commission will be to examine “the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.” However, as Scott Cosenza explained, only that “membership and size of the Court” part can be changed by Congress – without another amendment to the Constitution, that is.
Does Biden Have the Clout?
Can Biden and his fellow would-be court packers ram through a constitutional amendment? Not likely. Unless something significant changes, they can’t even manage the simple majority necessary to nuke the filibuster, allowing them to pass a court packing law without any GOP support. This certainly gives credibility to the idea that it could all be a progressive fake-out. And as Scott explained, the country would be lucky if that’s all it is – a way to keep the more progressive Democrats off Biden’s back.
But what kind of situation are we in if our best hope is that the president is trying to fake-out the more extreme elements of his party?
Read more from James Fite.