October 26, 2020 Reading Time: 6 minutes

ABC News recently reported 

“Former Vice President Joe Biden says, if elected, he would turn to a bipartisan commission for recommendations on what changes should be made to the Supreme Court, calling the current system “out of whack.”

The Supreme Court has become one of the most contentious topics of American politics over the past couple of years, with all three of President Trump’s court nominations drawing intense polarization. In a previous article, I explained the basic structure of the Supreme Court and why the ongoing politicization is incredibly dangerous as well as inappropriate. In another essay, I examined how Alexander Hamilton’s writings in the Federalist Papers outline the sound rationale for the current structure of the Court and why any changes should seriously consider the principle set forth in his writings. 

In light of all circumstances, current and historical, we should be incredibly wary of candidate Joe Biden’s so-called “bipartisan commission.” Not only does it seem to simply be a placeholder for extreme policies such as court-packing but such an idea seems to suggest a desire to fundamentally alter the very foundation of this country. A revolt against the ideas of limited government and individual liberty in favor of a pivot towards a system of collectivist majoritarianism. 

Court Packing in Plain Sight 

To Biden’s credit, he seems to understand how important and sacred the Supreme Court is. The seats on the court have not been changed for over a hundred years. ABC writes that 

“After deflecting repeated questions about whether he was for or against the idea, Biden said in a town hall with ABC News last week in Philadelphia he was ‘not a fan’ of court packing, but committed the American people would know where he stood before Election Day.”

However, they also write 

“When pressed on whether the commission study would center solely on the issue of packing the court, Biden pushed back, arguing there are “a number of alternatives that … go well beyond packing.”

Biden’s inability to answer a basic question on whether he intends to drastically alter the structure of the United States government is incredibly concerning. Court-packing has become a mainstream idea for Progressives. An article in The Hill shows just how feeble Biden’s gesture is when it states

“We don’t need to be promised a nice report about reform delivered to the White House, we need Vice President Biden to assure Americans that he will take bold action to ensure our courts don’t remain dominated by a right-wing fringe installed by Mitch McConnell to attack abortion rights, destroy health care reform, and dismantle our democracy,” said Yvette Simpson, the CEO of the progressive group Democracy for America.”

It doesn’t take much effort to see that Biden’s promise to form a “bipartisan commission” is simply a way of punting the discussion about court-packing to the future. Furthermore, on a topic as existential as drastically changing the structure of the Court, Biden’s answer is the politician’s equivalent to “I’m open to having that discussion.” 

There isn’t anything particularly wrong with trying to reform the Supreme Court. However, if we are going to pursue that option, we should understand that we are playing with fire. The seats on the Court have not been changed for over a hundred years and for good reason.

 The Harvard Law and Policy Review writes about the last time such a change occurred when they state

“Congress’s actions to shrink the Supreme Court from ten to seven immediately after the war were even more nakedly partisan. Congress denied President Andrew Johnson the ability to nominate justices who might oppose the congressional Reconstruction plan. President Ulysses Grant increased the Court back to nine seats after it ruled “greenback” paper currency unconstitutional, giving him two extra appointments.”

The article notes that changes to the Court were done with blatantly political ends in mind, which is clearly why calls for Court expansion are so apparent today. Today many Progressives view the Court and its expected constitutional interpretations as an obstacle to their political agenda. Republicans likely view the current Court as an asset. 

There is nothing stopping Congress from expanding the Court and it is perfectly constitutional. However, doing so would likely spark a political back and forth of expansion and contraction that would ruin the legitimacy of the legal system. If that is the case, the legitimacy of the United States government would go down with it. That is why Franklin D. Roosevelt’s plan to pack the Court to stop it from opposing his New Deal agenda was met with bipartisan opposition. 

The only thing that has stopped either political party from ruining the Court is norms. The power to change the Court exists because there may be some instances where it would be appropriate, but that privilege is predicated on the fact that certain essential norms are upheld. One of those is understanding that court-packing is the political equivalent of nuclear weapons; extremely potent but a continued back and forth could easily wipe out the republic.

If one peruses the recent history of Supreme Court justice nomination hearings it would be hard to trust Congress to have any sort of self-control in protecting the independent judiciary if the guardrails came off.

Some Wisdom on Court Reform 

The late Justice Ruth Bader Ginsburg, a bastion of progressive values on the Court and a civil rights icon, noted in an interview with NPR just last year on the topic of court-packing that

“Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.

“If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”

She notes that the Court’s legitimacy hinges on public trust as it has no physical power like an army or control over funding. We expect that the nine supremely qualified and principled justices had a technical as well as a disinterested conversation regarding the text of the law. Their decisions are based on rigorous constitutional interpretation, not partisan allegiances. That is exactly what happens today. If you even glanced at the Court’s decisions, the justices rule in all sorts of ways. Although judges certainly have their own interpretations of the Constitution, their rulings are not based on partisan agendas.

If the public is led to believe that the Court is simply another branch of politics then our laws will lack legitimacy. Alexander Hamilton outlined the bleak reality of such a country when he remarked

“If the laws are not suffered to control the passions of individuals, through the organs of an extended, firm and independent judiciary, the bayonet must.” 

The Court does not exist to be accountable to the political process or even the American people. It exists to uphold the Constitution, which sets out timeless guidelines for a government that exists firstly to protect our freedom, not do the bidding of the majority or the few.

Politicians from both sides constantly invoke a narrative that the Court is the key to various political ends whether it be universal healthcare, abortion, or fighting climate change. Such tendencies are natural given that politicians exist in the political branches of government, where such tactics are to be expected. However, these efforts to remake the Court or at least portray it as a partisan battleground like Congress should be vigorously opposed.

Alexander Hamilton warned in Federalist Paper 81 that 

“On account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.”

The court system should be kept apolitical and topics of political contention should be directed back to where they belong, in the two political branches of government. This is part of the reason why Supreme Court justices strongly oppose cameras in the courtroom. The last thing we need is ambitious members of the media attempting to make soundbites out of complicated legal cases for their own political narratives. 

Key Takeaways 

Biden’s proposal to form a “bipartisan commission” to discuss judicial reform seems more like a compromise with the more extreme members of his party rather than a real desire for reform. Although there are certain things that could be changed about the Judicial Branch, all the ideas circulating in mainstream discourse suggest that the idea is more of a postponement on the discussion of court-packing.  

Instead of standing up to members of his party, Biden has opted for a commission that will accomplish either of two things. Either it will advise against court-packing and other drastic judicial reforms or it will come out in favor of them. Therefore, Biden gets to shift accountability and defer legitimacy to the commission rather than actually take a stand for his true intentions. Although it seems like Biden understands that drastic reforms are dangerous, his unwillingness to take a stand on such an existential question is concerning to say the least. However, there is no question that he is fanning the dangerous flames of polarization with his ambiguity instead of taking a firm stance against it. 

The Supreme Court exists not to enforce the will of the few or the many. It exists primarily to uphold the Constitution, adjudicate justice, and to establish a government that exists primarily to secure individual liberty. Although reforming the Supreme Court is certainly permitted, politicians must be incredibly conscious of the role and purpose of the Court. Short-term political agendas are not worth potentially compromising the integrity of our legal system for all of posterity. 

Ethan Yang

Ethan Yang

Ethan Yang is an Adjunct Research Fellow at AIER as well as the host of the AIER Authors Corner Podcast.

He holds a BA in Political Science with a concentration in International Relations with minors in legal studies and formal organizations from Trinity College in Hartford Connecticut. He is currently pursuing a JD from the Antonin Scalia Law School at George Mason University.

Ethan also serves as the director of the Mark Twain Center for the Study of Human Freedom at Trinity College and is also involved with Students for Liberty. He has also held research positions at the Cato Institute, the Connecticut State Senate, Cause of Action Institute and other organizations.

Ethan is currently based in Washington D.C and is a recipient of the 13th Annual International Vernon Smith Prize from the European Center of Austrian Economics Foundation. His work has been featured and cited in a variety of outlets from online media to radio broadcast.

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