Biden Refuses to Rule Out Supporting New Democratic Court-Packing Bill


Congressional Democrats on Thursday introduced the Judiciary Act of 2021, a bill proposing that the number of U.S. Supreme Court justices be increased from nine to 13.

New York Democratic Rep. Jerrold Nadler, chairman of the House Judiciary Committee and a co-sponsor of the bill, said that as the country has grown — and with it the number of federal judicial circuits — so too should the Supreme Court. Meanwhile, the Senate co-sponsor, Democratic Sen. Edward Markey of Massachusetts, said the Supreme Court is broken and Republicans are to blame.

House Democratic Reps. Mondaire Jones of New York and Hank Johnson of Georgia are also co-sponsors, according to ABC News.

Yet, just last week, President Joe Biden issued an executive order establishing a commission of legal scholars to examine various aspects of the Supreme Court, including its role and function, judicial appointments, and possible changes.

In the first presidential debate between Biden and then-President Donald Trump on Sept. 29, Trump continuously pressed Biden to disclose whether he intended to increase the number of justices on the Supreme Court.

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Biden flatly refused to answer, claiming that whatever answer he gave, “that’ll become the issue.”

On Thursday, White House press secretary Jen Psaki was asked whether Biden backs the Democratic bill to pack the court, and while she did not provide a straight answer, she also wouldn’t rule out the possibility of Biden supporting it.

“Well, just last week, the president signed an executive order creating the bipartisan commission on the Supreme Court of the United States — a bipartisan group of over 30 constitutional and legal experts who are examining a range of questions about proposed potential reforms to the Supreme Court,” she said, according to a White House transcript.

“And one of the issues they’ll look at is, of course, the size of the Court, but they’ll also look at the Court’s role in the constitutional system, the length of service, the turnover of justices, and they’re going to come back to the president with a report on what their discussions are and what their findings are.”

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“So he’s going to wait for that to play out, and wait to read that report.”

Now, Biden has expressed clear opposition to court packing in the past, as a 1983 video of then-Sen. Biden shows him describing former President Franklin Roosevelt’s proposal to pack the Supreme Court “a bonehead idea.”

Biden called it a “terrible, terrible mistake to make” that put in question the independence of “the most significant body in this country, the Supreme Court.”

Some might argue — perhaps justifiably — that we shouldn’t necessarily hold a person to a point of view he expressed 38 years ago. But far more recently, in July 2019, Biden told Iowa Starting Line that he was “not prepared to go on and try to pack the court, because we’ll live to rue that day.”

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Clearly, Democrats like Nadler and Markey are steamrolling over Biden’s executive order, ignoring the commission of bipartisan legal scholars the president assembled to study this and other issues for a minimum of six months. This confirms many American voters’ worst fears, that Biden isn’t strong enough to rein in those in his party who are to the left of him.

If Congress prevails in passing such a law, Biden conceivably can appoint up to four new associate justices at any time. If he chooses candidates whose judicial philosophy matches those of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who tend to favor activism over restraint and view the court as a vehicle to perpetuate social justice rather than a guardian of constitutional principles that leaves lawmaking to the legislators, then the activists would have a majority over the strict constitutionalist Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Chief Justice John Roberts, in recent years, seems to focus increasingly on adhering to precedent more than anything else, and is not a consistent originalist.

Nadler’s contention that as the country and the circuits grow, so should the Supreme Court, smacks more of self-serving justification than genuine concern for either the country or the court. After all, when the court decides to hear a case on appeal, the justices do so collectively, one case at a time. It isn’t as if more justices would allow them to divvy up the work.

As for Markey, he conveniently forgets that the modern-day skewering of Supreme Court judicial nominees began when then-Sen. Ted Kennedy of Massachusetts, long deemed the Senate’s “liberal lion,” railroaded former President Ronald Reagan’s appointee, Judge Robert Bork, out of contention. In fact, the process of rejecting a nominee based on political and ideological differences became commonly known as “Borking.”

Trump had the opportunity to fill three Supreme Court vacancies with Gorsuch, Kavanaugh and Barrett — the third being the most devastating to the left, because Barrett, a favorite of conservatives, replaced Justice Ruth Bader Ginsburg, a longtime icon of the left, who died while still serving on the bench. By packing the court with four progressive activists, the left hopes to reverse the conservatives’ momentum.

But the Joe Biden of 2019 was right: We will live to rue the day, and just as liberal or conservative majorities change places with nine justices, the same can happen with four more.

Other Democrats are already downplaying the bill, and House Speaker Nancy Pelosi, a Democrat of California, has said the House has no plans to bring the bill to the floor for a vote.

Nonetheless, the brash maneuver by Nadler, Markey and company is the latest in what is shaping up to be a leftward shift like none other ever experienced in our nation’s history. To realize just how far left the Democrats have veered, consider that Pelosi is, comparatively speaking, that party’s “moderate” voice of reason.

As for Biden, time will tell if he has the will and the stamina to keep the fringe from becoming the mainstream.

Meanwhile, those cheering on the Judiciary Act of 2021 might be interested to learn that among those who consistently and vehemently opposed increasing the number of justices on the Supreme Court was none other than Ruth Bader Ginsburg herself.

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Constantinos E. (“Dino”) Scaros, JD, Ph.D., is a presidential historian, educator, attorney, newspaper editor and columnist, and political analyst. He is also the author of several books covering many contemporary issues, most recently "How to Talk Politics Without Arguing," "Trumped-Up Charges!" and "Stop Calling Them 'Immigrants.'" Follow him on his Facebook page: Listen to Dino.