How Serious Are Democrats About Packing the Court?

Expanding the Supreme Court so that Joe Biden can nominate two (or perhaps four) new leftists has been on the Democrats’ wish list since the 2020 election. But I don’t see how they can accomplish that objective, since it would require nullifying the filibuster, and it is hard to see either Joe Manchin or Kyrsten Sinema going along with that for such a radical purpose.

Perhaps this is why Biden appointed a four-person commission–three law professors and a left-wing activist–to investigate the potential for court packing. That commission has released an initial draft report, which is embedded below. What is striking to me is the credibility the commission gives to leftists’ grounds for thinking the Court should be enlarged. Our democracy is under attack! In leftspeak, that means the Court is one of the few institutions they don’t control.

As we noted in Section I (B), some proponents of Court expansion justify the reform as a response to what they perceive to be a crisis of legitimacy—a concept whose dimensions we delineate in Chapter 1 of this Report. In the wake of bitter judicial confirmation battles, critics charge that Republican lawmakers since 2016 have used underhanded measures to secure a conservative supermajority on the Supreme Court.

Critics further worry that this new supermajority threatens to take the law, and particularly federal constitutional law, in a more radical direction than where it was already moving–perhaps by reversing or continuing to revise longstanding precedents in the areas of reproductive rights, affirmative action, gun rights, religion, administrative law, voting rights, and campaign finance law.

We should be so lucky. I’d love to see a list of those “longstanding precedents” that have been “revised”–not, of course, reversed.

But for the improper confirmation tactics of Republican lawmakers [Ed.: I.e., they had the votes], the argument goes, the Court’s doctrinal trajectory might have been considerably different. The confirmation process, in this view, has cast a shadow on the legitimacy of the Supreme Court and its jurisprudence. The loss in legitimacy could, over time, affect the willingness of the public—and especially those who disagree with the trend of Supreme Court decisions—to treat the Court’s rulings as authoritative.

In other words, give us the majority or the institution is illegitimate and we won’t follow its decisions.

I am not interested in deconstructing such nonsense, but rather in simply noting that Biden’s hand-picked commission hasn’t been able to come out in favor of court packing. Not yet, at least. This fact has prompted howls of outrage from the Left, as catalogued here. Apparently quite a few Democrats had seriously been counting on using their razor-thin control of Congress to pack the Supreme Court. Happily, it looks as though cooler heads are going to prevail. And it does seem plausible, as leftists are now saying, that Biden appointed this commission to give himself cover if and when he decides not to proceed with packing the Court.

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