Biden’s Court-Packing Plans Canned, For Now

posted on December 16, 2021
Gage Skidmore courtesy Flickr

In late 2019, five U.S. Senators, all Democrats, threatened to “restructure” (read “pack”) the U.S. Supreme Court if the Court went ahead with a challenge to New York’s gun-control laws.

That particular case was called “moot” by the high court. But the issue didn’t go away. It impacted the 2020 presidential election. Both then-candidate Joe Biden and Kamala Harris, at the time, would not say whether they were for adding justices to the U.S. Supreme Court or not.

Later, after Biden became president of the United States, he issued an executive action (one of almost 50 in his first 100 days) directing the formation of a commission to study the U.S. Supreme Court.

President Joe Biden’s (D) Presidential Commission on the Supreme Court recently, and unanimously, approved a nearly 300-page report. It has little to say about the “Membership and Size of the Court.” It devotes just one chapter—28 of the 300 pages—to this topic. Rather than making any formal recommendations for court packing, the commission simply laid out the arguments for and against it.

That commission’s conclusion said that “there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise. As a Commission we have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the Court.”

The Wall Street Journal reported: “Because the commissioners disagreed strongly on the subject, the document takes the form of plainly laying out the arguments for and against court-packing at about equal length.”

The report’s measured tone on the topic and failure to formally recommend any plan for court packing is a welcome repudiation to the desires of certain politicians who seek to cynically grab power.

“A Biden court-packing scheme would be an American-altering progressive power grab. A power grab,” wrote America’s 1st Freedom Editor in Chief Frank Miniter during Biden’s presidential campaign.

Of course, the threat of court packing extends beyond that of the executive branch and into the legislature. It was not all so long ago that five senators actually had the gumption to outright threaten the high court with being “restructured.”

In that previously mentioned late-2019 “friend-of-the-court” brief, which The Wall Street Journal called an “enemy-of-the-court brief,” those five U.S. senators wrote: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

Clearly, these senators and President Biden want the Court to further their partisan agenda. Fortunately, the commission’s report signals this isn’t likely to happen.



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