Biden's court-packing commission: Not so fast ...

Biden's court-packing commission: Not so fast ...
AP Photo/Patrick Semansky

If progressive anger at Joe Biden over their hobby-horse reconciliation bill hasn’t gotten hot enough, just wait until they read through report from his court-packing commission. Progressives demanded that Biden follow through on his flirtation with expanding the Supreme Court now that conservatives have a clear majority. Instead, with an evenly split Senate and a lack of Democratic unity on the idea, Biden punted it to his ad hoc commission.

And they have punted on court packing in return:

President Biden’s commission evaluating potential reform of the Supreme Court cautioned that increasing the size of the court might be perceived as partisan maneuvering, but noted there is widespread support for term limits on the justices, who enjoy life tenure.

The Presidential Commission on the Supreme Court of the United States will meet Friday to begin writing a report to the president, likely to be presented next month. Mostly made up of academics, the draft materials that the commission has collected so far, released Thursday night, read much like a textbook on history and available options, rather than a manifesto for change. …

While a subcommittee said there was no “legal obstacle” to expanding the court — its size has varied over the centuries but has remained at nine since 1869 — its report said “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.”

Expansion efforts, the report says, might hurt the high court’s “long-term legitimacy or otherwise undermine its role in our legal system.” The report cautions that it could lead to a “continuous cycle” of expansions, citing one estimate of as many as 29 justices in the next 50 years.

“The public might come to see the court as a ‘political football,’ a pawn in a continuing partisan game,” it said.

As they note in the same section of the draft report, expansion would almost certainly only take place in the rare instances of unified-party control in Washington. It’s not just a matter of Senate control. Unless Congress passes and a president signs legislation that simply removes the limit on Supreme Court seats (even more of a non-starter than court-packing itself), each expansion will require legislation before nominations and confirmations take place for new seats.

When opposite parties control the White House and Congress, however, the entire process will grind to a halt, the panel points out, and the efficiency argument is entirely nonsense:

Furthermore, the current political standoff over the Supreme Court comes in part because of its outsize role in checking the other two branches of government. It has already assumed quasi-legislative authority, a situation that would only grow worse as it transforms into the American analogue to the House of Lords:

And this is where Biden and his commission will get the biggest problems from progressives. They see this as a feature, not a bug. They want a House of Lords to create a “legislative” path by judicial fiat for their agenda because they know Congress will almost never provide them enough votes to pass it. That’s why they rallied around the court-packing proposal last year and demanded Biden back them up.

Instead, Biden’s commission has made it clear just how radical this idea is, and wisely warns to be wary of pushing it. Term limits might be a more moderate approach, but that will require bipartisan cooperation and might even need a constitutional amendment to accomplish. If Congress imposes that by legislation, it will immediately get opposed in court … and we can guess what federal judges who took these lifetime positions will think of the idea.

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