OPINION:
Court-packing has always been a brazen attempt by leftists to overthrow our court system and undermine judicial independence. President Biden’s lame-duck proposal mainstreaming partisan demands from the far left to exercise raw power over a separate but equal branch of our government reveals much about the political moment.
Reeling from a torrid month of political gaffes, a poor debate performance, policy losses at the Supreme Court and a momentum-shifting and tragic threat to former President Donald Trump’s life, President Biden announced in a prime-time address — the first after his ouster from the top of the Democratic Party ticket — that he intends to use the final months of his now lame-duck presidency to “call for Supreme Court reform,” something he asserted is “critical to our democracy.”
He followed that address with an opinion piece in The Washington Post seeking to impose overtly partisan demands targeting the Supreme Court’s conservatives — an act of pure political revenge that threatens the civil liberties of all Americans.
Transforming the Supreme Court into another partisan body would destroy the constitutional order and threaten our civil liberties. Past generations of Americans knew this all too well, and Mr. Biden once knew it, too.
In 1937, Democrats rebuffed President Franklin D. Roosevelt’s efforts to manipulate the court to suit his own political ends. Presented with various reforms styled the “Reorganization of the Federal Judiciary,” the Senate Judiciary Committee labeled Roosevelt’s efforts a “needless, futile, and utterly dangerous abandonment of constitutional principle.”
Though the Senate Democrats at the time hoped such court reforms would be so “emphatically rejected that its parallel will never again be presented to free representatives of the free people of America,” here we are, staring down such measures again.
By thwarting Roosevelt’s political power grab, the 75th Congress hoped subsequent generations would inherit “an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people” rather than a court acting “out of fear or sense of obligation.”
Years later, then-Sen. Joe Biden asserted that Roosevelt “clearly had the right” to seek a reorganization of the federal judiciary, declaring the New Deal president “was legalistically, absolutely correct.” Whatever that means.
“But it was a bonehead idea,” he concluded. “It was a terrible, terrible mistake to make.”
Surely, it was both boneheaded and a “terrible mistake,” but Mr. Biden went beyond rhetorician to historian, noting that Roosevelt’s efforts “put in question, for an entire decade, the independence of the most significant body … in this country, the Supreme Court of the United States of America.”
He was off in his count by only a few decades. The generations that followed the 1937 Democrats quickly forgot their prior commitment to an independent judiciary, leading ultimately to President Biden launching the Presidential Commission on the Supreme Court of the United States soon after taking the oath of office. That commission concluded its work with an extensive report, but neither President Biden nor notable Senate Democrats vocally supportive of an overhaul of the judiciary did more than engage in escalating rhetoric against the conservative justices of the Supreme Court.
But ruling Democratic elites have done nothing but talk about court reform and criticize judges who cannot (or will not) push back. To suggest that Mr. Biden’s proposal is a transparent pursuit of raw political power would suggest that he retains political power. More likely, Mr. Biden is desperate to save his political legacy while perhaps rallying the most liberal voters to turn out in November.
That could be dismissed as another day in politics, but for the fact that he has nothing to lose. What possible motivation does Mr. Biden — with no hope of a second term — have to moderate leftist demands for the judiciary’s reorganization?
“Legalistically,” he would have every incentive to pursue an ethics code or term limits and pack the court, diminishing its judicial independence so that one party — his party — could rule the nation for decades to come.
It would still be a “bonehead idea,” but with the last safeguards of the nation’s civil liberties subordinated to raw leftist power, who would be allowed to care?
• Jeremy Dys is senior counsel for the First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom. Learn more at FirstLiberty.org.
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