The politics of court-packing

Biden commission could kill Dems' opportunity to change the High Court. But it would give the party a foil

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If you can’t beat ‘em, pack the court.

Liberals have long wanted to get even with Republicans when it comes to the Supreme Court.

So some progressives pitched the idea of expanding the size of the court to strike a new balance. Or maybe even "reclaiming" some seats Democrats think the GOP "stole" from them over the past few years.

To wit:

Democrats watched then-Senate Majority Leader Mitch McConnell, R-Ky., sideline the nomination of current Attorney General Merrick Garland when President Obama picked him for the High Court in 2016. McConnell said the GOP-controlled Senate wouldn’t grant Garland a hearing. McConnell declared that the next president should fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. McConnell noted that no Senate had filled a Supreme Court vacancy in a presidential election year since the 19th century. But the Senate actually confirmed former Justice Anthony Kennedy in early 1988, also a presidential election year. 

Regardless, McConnell got his wish. President Trump won in 2016. Mr. Trump filled Scalia’s seat with Supreme Court Justice Neil Gorsuch. Democrats lost their chance to fill the seat of the conservative Scalia with a liberal like Garland.

Kennedy retired in 2018. That set off one of the most toxic confirmation processes in Senate history. The fight over confirming Justice Brett Kavanaugh devolved into a political melee after Christine Blasey Ford leveled allegations at Kavanaugh dating back to high school.

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And then Justice Ruth Bader Ginsburg died just seven weeks before the 2020 election. Despite his resistance to filling the Scalia seat with Garland four years prior, McConnell did an about-face. He decided that the Senate would in fact seat Trump’s third nominee for the High Court – despite it being weeks from the 2020 election. Never mind that Scalia died in February 2016, 38 weeks before that year’s presidential election.

The Senate confirmed Justice Amy Coney Barrett days before the 2020 election. 

One could even go back to the late 1980s. Senate Democrats, led by the late Sen. Ted Kennedy, D-Mass., practically coined the phrase "Borking." The term emerged after Democrats helped incinerate the nomination of the late Robert Bork for the Supreme Court in 1987. Democrats were incensed that President Reagan already had the opportunity to install his fourth justice on the High Court. They were miffed that there was never a single vacancy on the court during the term of President Jimmy Carter. Bork became just the 11th Supreme Court nominee rejected by the Senate. 

But the experience with Bork only set the table for the raucous battle over confirming Justice Clarence Thomas in 1991. Professor Anita Hill accused Thomas of sexual harassment. President Biden chaired the Senate Judiciary Committee at the time. He took heat for how the panel handled the hearings.

So that is the sordid history of some of the recent confirmation battles for the Supreme Court. 

But President Biden’s commission to study potential changes to the Supreme Court blew up on the far-left. The committee fretted that changing the makeup of the court could undermine its legitimacy and could backfire. It was a blow to progressives.

The preliminary report on the future of the court declared that expanding the size and scope wouldn’t attain balance. The 203-page draft said "the risks of Court expansion are considerable." The report suggested concepts such as term limits for the Supreme Court – perhaps something like staggered, 18-year terms on the court. The panel argued that the idea "would advance our Constitution’s commitments to checks and balances and popular sovereignty." 

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The key issue here is that both sides have weaponized the Supreme Court. The public views the Supreme Court as political. Republicans excoriated Chief Justice John Roberts for "siding" with Democrats on two Obamacare rulings. Democrats assert that McConnell’s parliamentary gymnastics to forestall Garland’s nomination for the Supreme Court – then rush to confirm Barrett – reeks of politics. There is plenty of politics to go around. And of course, Republicans have been more than happy to characterize efforts to expand the Supreme Court as "court-packing" and a political power play by Democrats.

"The public is overwhelmingly against court-packing. President Biden celled this a boneheaded idea," said George Washington University law professor Jonathan Turley. "It hasn't changed. It’s still a boneheaded idea. But what is really fascinating to watch is the number of members of Congress and law professors who are saying that we have to pack the court because it's not reading the Constitution the way we read the Constitution."

There are even considerations about creating other courts to possibly offset or equalize rulings from the Supreme Court. 

But consider what it would take to actually create a new court or change the makeup of the Supreme Court. The most constitutional way to go about this is via legislation. Article III, Section 1 of the Constitution calls for "one Supreme Court." It also says that Congress "may from time to time ordain and establish" other courts. But the Constitution calls those tribunals "inferior courts."

Still, Democrats may use the concept of court packing to ignite their base and energize progressives. And, such legislation would inevitably face a Senate filibuster. 

So you know where this is going.

Still, the left touts the idea of potentially altering the Supreme Court. 

"The Supreme Court hasn't increased in size since Lincoln's day and we've had nine members since then. So it's a legitimate discussion to have and the president appointed a commission to discuss that," said House Speaker Nancy Pelosi, D-Calif.

But to some degree, perceptions about the Supreme Court have always been political. President Franklin Delano Roosevelt engineered a "court-packing" plan in 1937. Roosevelt wanted to add up to six new justices to the Supreme Court for every justice pushing the age of 71 or who had served for at least a decade. The legislation was part of FDR’s efforts to salvage the economy, stagnant from the Great Depression. FDR believed changing the Supreme Court may help with an economic recovery. After all, the Supreme Court had already struck down key parts of agricultural policy FDR implemented to help boost the economy.

The Senate never thought that President John Tyler was legitimate, having ascended to the White House after President William Henry Harrison died following just a month in office. Two Supreme Court justices died during Tyler’s administration. The Senate rejected one nominee, 26-21. The Senate sat on another nominee for nearly a year.

In 1866, the Senate specifically voted to shrink the size of the Supreme Court in an effort to undercut President Andrew Johnson.

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So liberals may relish the idea of "packing" the Supreme Court to offset what they see as partisan gains by the GOP. The president’s commission on the judiciary plans to submit a final report in November. But actually enacting any of these proposals is daunting. President Biden knows it’s nearly impossible to implement such changes. So, the commission, in effect, kills off any opportunity Democrats may have to change the High Court.

But the enterprise does do one thing: Democrats need a foil. They can relitigate the fights over confirming Kavanaugh and Barrett. Democrats need to keep the conversation about the Supreme Court going. And a political proposal like this energizes the left.