Amidst National Chaos, Biden and the Left Want to Pack the Supreme Court
NBC News reports that Democrats in Congress will soon introduce legislation “to expand the Supreme Court from nine to 13 justices, joining progressive activists pushing to transform the court.”1
No surprise. Democrats have long talked of packing the Court. We heard it loud and clear during the presidential campaign last fall, based on vitriolic anger that President Trump put three new justices on the bench during his term.
And looking back into the history of Court-packing, the year 1937 also rings a bell.
This new effort comes less than a week after President Biden signed another executive order, establishing a commission to “study” an overhaul of the institution.2
Biden tasked the commission to examine the Court’s membership and size, length of service and turnover of justices, and how the Court carries out case selection under its rules and practices.
Day to day, it’s easy to overlook the import of Biden’s Supreme Court commission, let alone Congress drafting legislation to overhaul it. This kind of thing can get lost in the larger news cycle with many other issues on the national burners.
For example, the federal deficit is exploding, inflation is rising, the southern border is wide open, street riots foretell another long summer, and from Ukraine to Taiwan the U.S. is swimming in swift, dangerous currents flowing to foreign conflict.
But aside from these economic-political-military, national/international-scale meltdowns, there always seems to be time in Washington for busybodies and troublemakers to create additional controversy — to pour gasoline on raging fires, so to speak.
So let’s dig into this, the latest political assault on the Supreme Court…
First, full disclosure… I’m actually admitted to practice before the U.S. Supreme Court.
In addition to being a geologist and retired Navy officer, I have a law degree. I worked in the legal arena for many years, although for quite some time I’ve been a recovering attorney; I don’t hit that particular bottle anymore.
Over the course of my law career, and due to the nature of my practice (commercial litigation and bankruptcy), I filed the sum total of one case with the Supreme Court.
And alas, the justices (their clerks and staff, actually) denied certiorari. That is, they rejected hearing the case.
Their loss, too. Because it was a fascinating issue of one state granting “full faith and credit” to a judgment from another state that was void ab initio. Essentially, should a facially void judgment receive full faith and credit in another state? Hell no, of course not…
But “cert. denied,” per the Supreme Court.
I suppose the justices figured it wasn’t their job to fix a clearly erroneous outcome, even when it absolutely was an issue of a state court misinterpreting the basics of the U.S. Constitution.
Despite this, I hold no grudge towards the Supreme Court. I respect the body. I want to see it function well and advance the overall cause of justice in the nation, always in conformity with the Constitution.
Which brings us back to Biden and Democrat Court-packing scheme (whoops, I mean the “overhaul”). We’re in early innings of this political game, and the field is wide open.
So far, the Supreme Court has not commented on either Biden’s study commission or any proposed legislation that’s about to hit the walls of Congress.
Perhaps the Court is being discrete. Don’t rock the political boat and all that. Then again, it’s not unfair to remark on the Supreme Court’s own institutional lack of vigor.
That is, across the street from the well-guarded U.S. Capitol, the Supreme Court has clearly run up a white flag of institutional surrender.
Not to be subtle, but the Court tends not to take hard cases, especially ones that touch the structures of Big Government, if not Deep State power in this country. It’s how they roll.
Over many years and via careful selection and/or denial of cases to hear, the Court has taken not just a neutral stance, but a neutered one on key issues of the overall national Constitutional correlation of forces.
There are many examples. But the Starfish Prime example of examples for blowing off controversy came a few months ago, in December. The Court hastily — nay, eagerly — dismissed an “original jurisdiction” case brought by Texas and 17 other states.
Previously, I discussed how, from all appearances, most current justices (7 of 9) apparently believe that it’s better to be the Supreme Court of the Holy Roman Empire.
Surely, you remember the Texas case with its sweeping claims about the November election. Yes, it was a “Trump” thing. And of course, it was politically toxic. But so what?
In essence, the Supreme Court told 18 states not just that they have no remedy for their complaints against other states. But they lack so much as a legal forum — they lack the Constitution’s clear, black-letter law, “original jurisdiction” — over profound issues rooted in national elections.
Breezily, and not unlike Pontius Pilate, the Supreme Court washed its hands of the entire matter.
And yes, the Texas case would’ve been tough and bitter, generating vicious press coverage. Hard cases usually leave stains on the floor, in a manner of speaking.
But when the Court barred its bronze doors to these 18 state-level litigants, it undermined the very foundations of the Constitution of 1787.
If the country collapses (and it could collapse!), this decision by the Supreme Court will be a big part of the reason why.
Looking back, the Supreme Court should have accepted the Texas case and then expeditiously dealt with the merits inside the courthouse, one way or another.
The Court should’ve done this not just for reasons of law and the Constitution, but just plain basic strategy; playing a judicial role as a relief valve for explosive social pressures. It was important to giving Texas a day in court.
Instead, the Court made an expedient decision to dismiss Texas et al., based on petty procedure. It shunned even the hint of reviewing fundamental Constitutional issues that touched innumerable irregularities of a national election.
In a blunder of epic scale, the Court failed to use its institutional stature to preserve the very credibility of the U.S. as a governable nation-state. The country is not governable anymore, as we’ll eventually see clearly. And it’ll come back to haunt us all.
Meanwhile, it’s obvious that we have no Chief Justice John Marshall or Justice Joseph Story on this bench. Instead, the current justices apparently beaver away with the mindset and temperament of glorified circuit judges.
In this respect, the modern Court is unmoored from its historical roots in Article III of the Constitution, ratified in 1787, where the very first sentence says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
This seems straightforward. But at a deeper, philosophical level, we immediately dive into arcane questions like what is “the judicial power,” let alone what is “the judicial power of the United States”?
People write law review articles and books on this topic, which is not where we’re going today.
Just understand that when we discuss these ideas, we’re quickly up to our eyeballs in English and American Common Law and how it all evolved into post-1787 federalism.
And what is this “federalism” thing?
Well, it helps to contrast the federal concept in light of pre-1787 concepts of state-level political, legal and judicial power which prevailed in the country under the Articles of Confederation (1777-87). If you go deeper, you get into powers of courts in each state under pre-1776 British rule.
Yes, history can take you places! And again, people write books about this. But not here.
Keep in mind that in 1787, the federal structure of the Constitution was new to the American national polity. Many people viewed the idea of a novel “federal” government as similar to a foreign government being imposed on them.
To more than a few Americans of the day, the Constitution was a domestic restoration of a national sovereign, recalling bad old times as subjects of an aloof, distant British king.
Back then most people’s loyalty was to their states. Any semblance of national government — let alone this “federal” thing — was alien. And much of the impetus to ditch the Articles of Confederation and to adopt the Constitution came about because the U.S., as a national entity, was essentially broke.
As we’ve discussed before, money was scarce in 1780s America. In fact, Shay’s Rebellion in Massachusetts in 1786-87, sparked by people’s inability to pay taxes, that was the final prompt for the Constitutional Convention in Philadelphia.
Out of it all came the Constitution, which declares that the country will have a Supreme Court which is separate from both the legislature (Congress) and the executive (the President).
The Constitution left it up to Congress to decide what the Supreme Court would look like and what other federal courts there would be.
One of the first things Congress did in 1789, the year the new U.S. government came into being, was to set up a federal judiciary, including the Supreme Court…
With six Justices.
Over time, six justices became seven.
And in 1869, in the aftermath of the Civil War and with too many Southerners on the bench, Congress set the number of justices at nine.
Nine justices took the country through its expansion westward in the late 1800s. Then through industrialization and the Gilded Age. And through World War I, the Great Depression (allowing for the unpleasantness of 1937), World War II, the Cold War, the Civil Rights Movement and much more…
Nine justices, all the way up to 2021, when the Biden-Congress payback for the Court’s ill-advised decision not to review the November election is a roadmap to packing it with new names.
Then again, perhaps the Supreme Court of the Holy Roman Empire had this coming.
In recent decades, it collectively staked its turf on federalizing the national culture, with decisions about who must bake a wedding cake for whom, and who can use which bathroom.
The court also tends to side with efforts to deepen the reach of bureaucratic powers.
Seldom does the court respect Tenth Amendment state power, or rein in big government. Usually it’s just a question of how much and how fast the federal government may expand.
Consider one recent decision about whether or not the Environmental Protection Agency (EPA) may keep its deliberations private in the face of public requests for information. The court sided with the government (surprised?) over an environmental group seeking draft agenda reports about potential harm to endangered species.3
And the Supreme Court docket is chockablock with similar cases that involve the vast array of alphabet soup government agencies being pushy if not aggressive.
Can the Federal Communications Commission do this? Can the Army Corps of Engineers do that? Can agencies issue regulations that define crimes and punishments, and then run their own little criminal court systems outside of Constitutional protections? (Often as not the Supreme Court rules yes, they can.)
One recent case, oddly enough, actually involved “original jurisdiction.” The Court sided with Georgia over Florida in a matter concerning water flow into a Gulf of Mexico oyster estuary.4
It’s the kind of case and controversy that the Court seems to like. Litigation over oysters, not defining the meaning of the Constitutional clause guaranteeing “a republican form of government.”
And at the end of the day, why decide difficult Constitutional cases that both involve history and fundamental structures of U.S. governance, when there are Freedom of Information Act challenges to bureaucratic overreach?
And here we are now, on the cusp of packing the Court with more bodies. More of the same kind of jurisprudence we’ve seen before, except that the players will no doubt lean towards acting as a third form of Congress that picks up the slack where legislation fails to reach.
Out with the old; in with the new.
U.S. Supreme Court justices, 1931-37. National Archives.
Oh my… Shades of Franklin Roosevelt!
On that note, I rest my case.
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Managing Editor, Whiskey & Gunpowder
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4 Supreme Court Sides With Georgia Over Florida in Long-Fought Water War, The Hill