The “progressive” campaign to “reform” the Supreme Court kicked off last week with the first meeting of “The President’s Commission on the Supreme Court of the United States.”
President Biden created the 36-member board chaired by an activist former counsel to Barack Obama’s campaign and the Democratic Party by executive order in April to prepare the way to pack or dilute the current right-leaning majority on the nine-member court. According to the president, the Commission will study reforming the court and report back to him within 180 days of its first meeting. That would be mid-November and will be seen as justifying the Democratic proposal to expand the size of the Supreme Court by four justices as House progressives are demanding.
When proposals to “pack” the court first appeared last year, they were not treated as seriously as they should have been. The last effort to pack the court to get it to kowtow to a president took place under President Franklin D. Roosevelt and even within his own party the backlash and quashed at great political cost to the president. The Constitution allows Congress to set the size of the court, but it has consisted of nine members since 1869 and has worked well.
A few years ago, when the late liberal Associate Justice Ruth Bader Ginsburg was asked what she thought of proposals to expand the court, she replied “nine is a pretty good number.” Before her death, Ginsburg made it clear that she believed packing the court for political reasons is a terrible idea that would undermine the legitimacy of the court.
As liberal as Justice Ginsburg, Associate Justice Steven Breyer is, if anything, more adamantly opposed to the scheme than she, and for the very same reasons. Justice Breyer spoke in April even as the president was preparing to announce his commission. He argued that packing the court would “erode” the court’s credibility and has gone so far as to author a soon-to-be-published book, “The Authority of the Court and the Peril of Politics,” that, according to the Harvard University Press, “will examine “how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.” The book will hit the stands in September as the commission is winding up its work.
Some still believe that because President Biden has in the past expressed misgivings about going forward with a court-packing plan, the scheme will ultimately flounder, but they would be foolish to bet on it. The president has shown a willingness to go along with many progressive demands that those familiar with his pre-presidential positions believed he would reject.
Mr. Biden in the past, has spoken passionately in favor of retaining the filibuster and in opposition to court packing. President Biden’s appointment of the commission and recent hints that maybe something must be done about the current court are signals that at the end of the day he can be expected to put his imprimatur on yet another proposal he once opposed.
Mr. Biden’s motives today are the same as Roosevelt’s. Neither the president nor his allies are stupid. They know that many of the Congressional proposals they are ramming through the legislature won’t pass constitutional muster unless they can change the makeup of the Supreme Court. The court has struck down some aspects of his stimulus package and will wreak havoc on his gun control proposals, stripping states of constitutional rights, vastly changing all election law, and other progressive agenda items — unless they change the court.
Liberals would not be risking almost certain political backlash if they did not believe they will ultimately prevail. It will take muzzling the opposition on Facebook and Twitter, so be it. If the labor unions have to be assuaged, so be it … and on and on. No cost is too great.
It isn’t just conservatives and a couple of old justices who are appalled at the idea of undermining the legitimacy of the court to advance their political agenda. Andrew P. Miller, a former Virginia Democratic attorney general, heads something called the Keep Nine Coalition that proposes amending the Constitution to keep the number of Supreme Court justices at nine.
This would end forever the ability of the congressional and executive branches to undermine the independence and integrity of the court. The amendment was introduced in the last Congress by a Democrat and now has the support of more than 90 members of Congress and 300 state legislators. Resolutions in support of the amendment have been adopted by seven state legislators and similar resolutions are pending in a dozen more.
The language of the “Keep Nine” amendment is simple enough: “The Supreme Court shall be composed of nine Justices.”
Good ideas are often simple ideas. This simple idea would do much to both protect and reform a court that means so much to the very democratic fabric of the American republic.
• David A. Keene is an editor at large for The Washington Times.
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