Packing the Supreme Court Under Biden
Senate Minority Leader Mitch McConnell recently expressed deep concerns about President Biden formally signing the commission papers appointing Judge Ketanji Brown Jackson to the Supreme Court even though Justice Stephen Breyer hasn’t formally vacated his seat on the High Court. While Jackson was confirmed by the Senate and formally appointed by the president to the court earlier this month, she cannot perform her duties as a justice until she takes the oath. Typically, however, a new justice is sworn in almost immediately after the president signs the commission, so that begs the question – Were the Democrats and President Biden trying to do an end run by adding a 10th justice to the Court without the consent of Congress?
Yes, it’s quite possible. According to a Fox News report, Republican aides have argued that Biden was trying to “intentionally confuse” the public on the number of justices on the Supreme Court so that he could help bring to fruition the desire of the left to pack the Court. While the White House vociferously denies these claims, a memo released earlier this month by the Justice Department’s Office of Legal Counsel makes one wonder exactly what the Biden administration was trying to pull. The memo clearly states, “If the Senate votes to confirm Judge Ketanji Brown Jackson as an associate justice of the Supreme Court, the president may complete her appointment to the Supreme Court by signing her commission before Justice Breyer’s resignation takes effect.” At a minimum, the Biden administration, with the help of the left leaning Senate, has set a precedent of nominating and confirming a Supreme Court Justice before an actual vacancy exists, and if there is a change in Presidency or Senate makeup prior to the new justice formally taking her seat on the bench, the confirmation and commission would still stand.
Members of the Left have been floating the idea of “packing the Court” as a way to implement their radical agenda by sidestepping the Constitution since before President Trump took office. Indeed, just a few weeks prior to the 2020 Presidential election, candidate Joe Biden announced that, if he were to win the presidency, he would create a “bipartisan commission of scholars” to explore ways to change the Supreme Court, which he said is “getting out of whack,” and shortly after taking office, he did exactly that.
After more than six months of consideration, Biden’s 36-member Presidential Commission on the Supreme Court of the United States issued their final report in December 2021. Oddly, this report hasn’t garnered much attention from the mainstream media even though the determination by the Left to circumvent the American system of government by adding justices to the High Court is spelled out in this document.
The Commission concedes that the parameters of the Constitution make it difficult to add members to the Court, but they don’t believe there is a “formal obstacle.” The authors further note that imposing a mandatory retirement age for justices would be problematic because it would require a Constitutional amendment altering the language of Article III, which provides federal judges with tenure “during good behavior,” and that the system of checks and balances America’s Founders built into our Constitution would make adding justices a risky political endeavor for the Left. However, the members of the Commission didn’t just take their bats and balls and go home just because the Constitution creates a roadblock.
Instead, they decided to build a new road by introducing new ideas for changing the makeup of the court like splitting it into two areas – “Senior Justices” and “Junior Justices.” In this scenario, the former would hear cases of “original jurisdiction,” and the latter would hear the remaining cases – those that encompass the majority of appeals. It’s not difficult to see that the goal in implementing something like this would be to relegate conservative justices like Clarence Thomas to the backburner while allowing newer, far left justices to hear the important cases that are brought to the high court on appeal.
While the concept of packing the Court is new to many, it’s not new to American politics. Court packing is a political strategy used to add more justices to the Supreme Court in order to flip partisan control and secure a desired majority, and it was first introduced in the late 1930s by President Franklin D. Roosevelt in response to the Supreme Court striking down a number of Roosevelt’s “New Deal” programs. In fact, it was during this time that the Supreme Court struck down more pieces of legislation than at any other time in history. To change the balance of the court so that he could get more favorable rulings on New Deal legislation, Roosevelt introduced the Judicial Procedures Reform Bill of 1937 – now known as the “court-packing plan” – which called for appointing six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served on the Court for 10 years or more.
This was seen as an unprecedented power grab that would chip away at the Constitution’s separation of powers. The majority of the public didn’t support it, and several Supreme Court justices publicly expressed their opposition to it. Even so, the debate over this issue lasted for 168 days dominating newspaper headlines, radio broadcasts, and kitchen table talk throughout the country. Due to Roosevelt’s popularity among American citizens, there was enormous controversy surrounding this issue. However, many believed it was still likely to pass.
In the end, it was West Coast Hotel Co. v. Parrish, a Supreme Court case, which ironically, had absolutely nothing to do with packing the court but finally put this issue to rest. The case involved Elsie Parrish and her husband who worked at the Cascading Hotel in Wenatchee, Washington. Mrs. Parrish sued for the difference between the weekly salary she and her husband were being paid and the $14.50 per week of 48 hours established as the minimum wage by the state of Washington. On direct appeal, the Washington State Supreme Court overturned the lower court ruling and found in favor of the West Coast Hotel Co. Eventually, in a 5-4 vote, the U.S. Supreme Court validated the minimum wage law from the state of Washington – a statute essentially no different from the New York state act it had struck down only months before – and The West Coast Hotel Co. was required to pay back wages to Elsie Parrish. So, how did this happen? Conservative justice Owen Roberts switched his vote and sided with the liberal Justices as part of a trade-off whereby the Supreme Court would never again strike down a New Deal law and Roosevelt would not follow through with the court-packing bill. As a play on the old proverb meaning a timely effort will save more work later, this became known as “a switch in time saved nine.”
It’s important to keep in mind that one of the main reasons the United States has survived as the world’s longest lasting republic is because our Founding Fathers had the wisdom to separate our government into three distinctly separate branches – one that makes the law, one that enforces the law, and one that interprets the law. If the Left gets their wish, and the Supreme Court is used as a weapon for partisan politics, it will become increasingly vulnerable to the influence of special interest groups and an endless pattern of judicial bias will be created. We cannot allow the highest court in the land to become a political football.