Joe Biden sparked controversy during the 2020 presidential campaign when he refused to rule out “packing” the Supreme Court with additional justices to change its ideological composition. Caught between a progressive flank clamoring for the move and a deeply skeptical population, the president copped out by saying he would form a commission to study the idea. Now, eight months into Biden’s presidency, that commission has begun its work — and the results undercut the Left’s push to pack the court.
The commission reviewed the proposal to expand the Supreme Court from its current nine justices, a number it has had since 1869. It notes that yes, it would be constitutional to expand the number of justices, as the Constitution grants Congress that power. But as far as the idea’s merits are concerned, the commission — which, if anything, is dominated by liberal academics — has some serious concerns.
It has not yet reached a conclusion on the merits of expansion, but draft materials warn that “the risks of court expansion are considerable … including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy.” Chiefly, by starting a dangerous cycle of court expansion after court expansion until the Supreme Court loses all credibility.
“Court expansion today could lead to a continuous cycle of future expansions,” the commission materials read. “According to one (purportedly modest) estimate of the consequences of expansions as parties gain Senate majorities and add Justices, the Supreme Court could expand to twenty-three or twenty-nine justices in the next fifty years, and thirty-nine or possibly sixty-three Justices over the next century.”
So, the commission also acknowledges that court-packing is seen as an authoritarian measure typically employed by anti-democratic political leaders who seek to undermine checks on their own authority.
“In some countries, alteration of the size of a country’s high court has been a worrying sign of democratic backsliding,” the materials read. “In 2004, Hugo Chavez in Venezuela reined in judicial independence by expanding the size of the constitutional court from twenty to thirty-two. Stable democracies since the mid-twentieth century, however, have not tended to make such moves.”
Simply put, it’s a radical, dangerous measure, and even left-leaning academics can see that. Indeed, no less a liberal icon than the late Justice Ruth Bader Ginsburg opposed court-packing.
Still, progressive Democrats such as Sen. Ed Markey and Rep. Jerry Nadler are unlikely to heed these warnings. They’ve made the political calculation that ramming a far-left agenda through the court is worth compromising its integrity and undermining our system of checks and balances. It’s not too late for Biden to see the light, though, given his campaign fence-sitting on the issue. If the president’s own Supreme Court commission can acknowledge the dangers of court-packing, Biden should be able to see that it’s not worth it — and take it off the table once and for all.
Brad Polumbo (@Brad_Polumbo) is a libertarian-conservative journalist and a Washington Examiner contributor. Subscribe to his YouTube channel or email him at [email protected].
