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Would Joe Biden Really Pack the Supreme Court?

Supreme Court
President Joe Biden signs the Further Surface Transportation Extension Act, Sunday, October 31, 2021, at Villa Taverna in Rome. (Official White House Photo by Adam Schultz)

President Joe Biden, while serving in the Senate, was not a fan of packing the Supreme Court—even referring to the attempt to do so by President Franklin Roosevelt as “boneheaded.”

As a candidate for president in 2020, the fringe left of his party demanded he add justices to the high court to offset a perceived 6-3 conservative majority.

Biden didn’t flip on it, but he did dodge the matter in a classic Washington way: he appointed a committee to study it.

Many shelves are full of dusty reports chalked full of recommendations from blue-ribbon commissions that were supposed to arrive at the a-ha solution to the problems ailing the country. Remember that Simpson-Bowles commission that was finally going to slash the national debt?

Well, the Presidential Commission on the Supreme Court went a step further with its final draft report in December—not even bothering to make recommendations about court-packing or any other “reforms,” only listing proposals with pros and cons for each.

This is one of those times when it was good to avoid the urge to “do something.”

Biden, though he has morphed to the left on many issues since becoming president, has been a traditional Democrat for much of his political life. Meanwhile, the base of his party has demanded he take an extremist and frankly tyrannical position to blow up the separation of powers.

He dodged this demand for now, but for how much longer?

The likely silent hope of Democratic operatives is that the Supreme Court’s ruling in 2022 in the Mississippi abortion case will galvanize the party faithful to vote in large numbers, enough to overcome public angst about the Biden presidency.

The high court could overturn Roe v. Wade and the Planned Parenthood v. Casey decisions—or at least significantly weaken those rulings—when it decides on the Mississippi abortion ban at 15 weeks. The ban puts the state in line with most European countries.

That would send the issue of abortion back to state legislatures and governors, rather than an issue for presidential and congressional campaigns. Though, there is legislation ready to go in Congress to codify Roe v. Wade just in case.

Many political and legal observers anticipate that if a majority of justices side with Mississippi, the left will demand Biden and Democrats in the Senate move to add enough justices to the high court to get their favored outcomes, The Hill reports.

So, while Biden and Senate Majority Leader Charles Schumer might see an advantage to firing up the base, it’s not likely either would welcome pressure from their party activists to pack the court. It’s not because they are concerned about the national interest. It’s that unlike members of Congress under 40 and activists under 30, Biden and Schumer realize this would be mutually assured destruction.

The legislation sponsored by Sen. Ed Markey would increase the size of the court from nine justices to 13. Not coincidentally, that’s just enough to overcome the current 6-3 conservative majority. Markey said passing the bill would require scrapping the filibuster—something the old bulls among Senate Democrats aren’t eager to do either.

When Senate Democrats under Harry Reid ended the filibuster only for judicial nominees to appoint more Barack Obama judges, enough Democrats recall that Senate Republicans under Mitch McConnell took the gift by appointing far more Trump nominees to circuit and district courts. Smart Democrats know ending the filibuster for all legislation could boomerang to their detriment after the next election cycle.

The consequences of packing the Supreme Court are tenfold. If Markey and other Democrats got their way and added enough justices to offset Republican appointees, a future Republican president with a Republican-controlled Senate would add just enough justices to offset the Democrat appointees.

That would turn the Supreme Court—which has had at least nominally more respect in public opinion than the other branches—into a sideshow. Within a decade, there could be 50-some justices, as control of the White House and Senate swings back and forth.

Members of the House would be mostly off the hook on taking tough votes, just doling out pork and naming post offices, since the divisive matters will be decided in the high court. But, such a circus atmosphere would raise the stakes of every presidential and Senate race, as Americans would essentially be electing a new Supreme Court majority every four to eight years.

Though it would make virtually every Supreme Court ruling seem subject to change as political winds shift.

FDR, after winning two landslide elections with massive Democrat majorities in Congress, was unsuccessful when he tried to pack the court—but he did manage to intimidate the court. It’s possible that working the refs is the endgame among Democrats, with the idle threat hanging over the head of justices each time they write an opinion. If that’s the case it’s a dangerous game.

The public rejected FDR’s attempt to obliterate a separate branch of government for the short-term benefit of enacting his policies.

Assuming Roe is a political advantage in driving Democrat turnout in 2022—and I’m not convinced that’s the case—they would surely squander that advantage by also demanding new justices.

Democrats may view abortion as the holy grail to rally their base. But if they become the party pledging to upend the most basic constitutional norms of separation of powers, that could potentially drive swing voters out in larger numbers more than any one public policy issue.

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”

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Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of "The Right Side of History" podcast. Lucas is also the author of "Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump."