The fate of America’s constitutional republic hangs in the balance as the leftwing progressive base of the Democratic Party tries to parlay Democrat control of the White House and Congress to obliterate the independence of the Supreme Court.
President Joe Biden has kicked things off by naming a 36-member commission to examine possible changes to the size and jurisdiction of the Supreme Court as well as proposals to set term limits for Supreme Court justices. The commission has 180 days to report back on its study of the issues, although it has not been given a mandate to make any formal recommendations.
While advertised as being bipartisan, the commission’s co-chairs, Bob Bauer and Cristina Rodriguez, both worked for the Obama administration. Even so, establishing a commission to analyze a hot button issue is often regarded as a convenient way to bury the issue. Not this time, however. The left won’t allow Biden or the Democrat-controlled Congress off the hook so easily. Even on the rare occasions when Biden’s old centrist instincts seem about to kick in, he quickly backtracks in the face of blowback from his left flank. What then-Senator Biden called a “bonehead” idea in 1983 and an “institutional power grab” in 2005 is now very much in play during Biden’s presidency.
The left sees immediate radical change to the structure and composition of the Supreme Court as necessary to cement its permanent control over the third branch of the federal government. That can only happen, however, after first nuking the Senate filibuster to pass their misnamed "For the People Act.” Also referred to simply as S.1, this bill would federalize slipshod election procedures across the country, eliminating state protections against potential election fraud, voter intimidation, illegal votes, and inaccurate vote counts. Passage of the bill will help Democrats guarantee their enduring control of Congress and the White House. With the filibuster already cast aside, Democrats will then be able to push through major changes to the Supreme Court this term with their slender majority. The result will be the left’s tight grip on the Supreme Court, while ensuring that the other two elected branches remain firmly in their pockets in future elections.
On April 15th, four Democrats in Congress decided not to even wait for Biden’s commission to complete its work. House Judiciary Committee Chairman Jerrold Nadler, Rep. Hank Johnson, Rep. Mondaire Jones, and Senator Edward J. Markey introduced the Judiciary Act of 2021 to expand the Supreme Court by adding four seats, creating a 13-justice Supreme Court. This would represent the first change in the size of the Supreme Court since 1869.
"Some people will accuse us of packing the court. We're not packing the court, we're unpacking it," Nadler sneered. Markey claimed that the “legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”
Even House Speaker Nancy Pelosi is not willing to oblige these demagogues just yet. Pelosi said that she “has no plans” to bring their bill to the House floor at this time. She wants to wait for Biden’s commission to finish its work before taking any further steps. But Pelosi has not ruled out supporting such a change down the road. “It’s not out of the question,” Pelosi said. “It has been done before.”
Yes, Congress has the constitutional authority to alter the size of the Supreme Court. However, it has chosen not to do so during a span of 152 years for good reason. When FDR tried to push forward his court packing scheme in 1937, the Democrat-controlled Senate Judiciary Committee issued a report at the time declaring that “we would rather have an independent Court, a fearless Court…than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact.” FDR's plan was shot down by his own party.
Democrats in Congress today no longer show such respect for the independence of a co-equal branch of the federal government. They are willing to increase the size of the Supreme Court solely for the purpose of turning it into a rubber stamp for their radical agenda. So long as Democrats succeed with their strategy to lock in continuing Democrat control of Congress and the White House by doing away with state law safeguards against election shenanigans, they have nothing to worry about. There will be no future Republican Congress and president elected who will be able to add more conservative justices.
However, there have been a few liberals with a conscience who have spoken out in recent times against court packing, as Joe Biden did when he was his own man in the Senate.
The late Justice Ruth Bader Ginsburg – the liberals’ heroine replaced by Justice Amy Coney Barrett – told NPR in July 2019 that "Nine seems to be a good number. It's been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court.” Justice Ginsburg worried that court packing “would make the court look partisan," adding that "it would be that — one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.' "
At Harvard Law School’s annual Scalia lecture on April 6th, Justice Stephen G. Breyer warned about how court packing would “reflect and affect the rule of law itself.” Justice Breyer added, “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the Court’s power, including its power to act as a ‘check’ on the other branches.”
Progressives dismiss such arguments, of course, and indeed are pressing for Justice Breyer to retire so that a much younger and more left leaning justice can replace him. However, a few moderate Democrats in the House may be wary of supporting a bill to pack the Supreme Court, fearing the issue would be hung around their necks in Republican ads during the next election cycle. Democrat Senator Joe Manchin has declared his opposition to court packing legislation, which means it would be dead in the Senate even if the filibuster were eliminated or severely weakened.
Court packing also does not have widespread public support. In a New York Times/Siena College poll conducted last October during the height of the presidential campaign, a question was asked: ”If Amy Coney Barrett is confirmed to the Supreme Court and Joe Biden is elected president, do you think that Democrats should or should not increase the size of the Supreme Court to include more than nine justices?” 58 percent said no. 31 percent said yes. 11 percent said they didn’t know or refused to answer.
Thus, Democrats may decide to rally around a seemingly less drastic alternative to immediately expanding the Supreme Court to 13 members - term limits for future Supreme Court justices. There is more public support for term limits than for court packing. But the proponents of this idea are wolves in sheep’s clothing.
Term limits for Supreme Court justices are arguably unconstitutional since Article III, Section 1 of the Constitution states that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…” Except in the case of impeachment or early retirement, this provision has been interpreted to mean a lifetime term.
The term limit advocates try to get around the constitutional issue by arguing that their reform would only apply to future justices. Moreover, they propose that, after a future justice’s Supreme Court term has expired, the justice would be free to remain in the judiciary as a senior appellate judge. They believe this demotion would satisfy the Constitution’s good behavior term language since the justices would still be judges. However, the Constitution’s text appears to tie the “good behavior” term for Supreme Court justices to their specific “Office” of Supreme Court justice, not to any post in the judicial branch. In her interview with NPR, Justice Ginsburg said that the term limits idea was unrealistic because of this constitutional provision and because, as she pointed out, "Our Constitution is powerfully hard to amend."
In any case, on a policy level, Democrats proposing term limits for future Supreme Court justices are selling snake oil.
Take, for example, legislation proposed by Reps. Ro Khanna (D-Calif.) and Don Beyer (D-Va.) that would apply only to future justices and would limit their service on the Supreme Court to 18 years. New justices would be appointed in the first and third years of each presidential term. Since, under this plan, none of the current justices would be forced off the Supreme Court, there will be a period during which more than nine justices will be serving at the same time. It is just a slower way of achieving the same objective as court packing.
If something like the Khanna-Beyer bill is passed in 2021, for example, President Biden would get to appoint one justice this year. This would expand the Court to ten until one of the current justices retires or dies. By a simple majority in the Senate (with Vice President Harris casting a tie-breaking vote), a progressive will be added to the Supreme Court. Biden’s next appointment would occur in 2023, even if there is then no vacancy on the bench. That could mean eleven justices until one of the current justices retires or dies. Assuming the Senate remains in Democrat hands, with the help of vote cheating enabled by the falsely entitled “For the People Act,” another progressive will be added to the Supreme Court. A Democrat White House and Senate in 2025 will ensure yet another progressive added to the Supreme Court, tilting the Supreme Court in a leftward direction. And so on. If a vacancy occurs during one of the off years, it would be filled temporarily by a lower court judge, until the following year when the president nominates, and the Senate confirms, the next term-limited justice.
The combined effect of the Democrats’ federalizing of elections to slant the outcomes in their direction and the passage of court packing or term limit legislation for the Supreme Court will be to institute permanent one party rule in Washington D.C. for all three branches of government. Separation of powers and checks and balances will be dead.
“Freedom is never more than one generation away from extinction,” Ronald Reagan once said. We are at that crossroads right now. We must fight the leftwing progressives’ attempt to turn this country into their tyrannical domain lest, as Reagan warned, we “spend our sunset years telling our children and our children's children what it once was like in America when men were free.”