Bench Memos

Law & the Courts

Biden Appeases Liberal Dark-Money Groups with Court-Packing Commission

President Biden’s recently announced commission to study structural changes to the Supreme Court is, of course, a not-so-subtle way of paving the road to packing the Court.

Biden has long known that Court-packing is a bad idea. Over the years, he has called it a “bonehead idea.” He asserted that Franklin D. Roosevelt was “corrupted by power” when he pushed his court-packing plan in 1937 and praised the Senate Democrats of the time who “stood against the executive overreaching.” As a presidential candidate last year, he repeated that he has “not been a fan of Court-packing.”

But since the election, he has been pressured by the left-wing dark-money groups — especially those in the vast Arabella Advisors network — that spent over $100 million to get him into the White House. They are desperate to see this happen, and the president is willing to do whatever it takes to appease them — even if it is at the expense of the Court and the country.

So the president set up this commission as a fig leaf — a way to lend a veneer of respectability to his complete change in position. As Senate minority leader Mitch McConnell recognized, “This new court-packing commission is not some serious pivot away from Democrats’ political attacks on the Court. It’s just an attempt to clothe those attacks in fake legitimacy.”

The commission consists of several dozen members who are overwhelmingly leftists. Its members include liberal fundamentalists like Laurence Tribe, who helped invent the idea of borking, and Caroline Frederickson, who has worked for dark-money groups ranging from the ACLU to NARAL Pro-Choice America to the American Constitution Society. They have a clear agenda in mind. The commission includes a handful of moderate Republicans recruited to put lipstick on the ideas of hardened radicals such as Tribe. But a pig with lipstick is still a pig.

While the commission will produce a report, the meatiest deliberations will likely happen behind closed doors. How much the body will conceal its inner workings remains to be seen. Will they agree to release information in compliance with transparency laws?

There is no question how this group will come down on Court-packing. Dark-money groups will settle for nothing less than an absolute takeover of the Supreme Court. While celebrating the creation of the commission, Aaron Belkin of Take Back the Court asserted, “We already know that adding seats is the only way to restore balance to the Court.” (By “balance,” of course, he means as much imbalance toward the left as possible.) He wants Court-packing legislation “NOW” without even waiting for the commission. That might not turn out to be the timeline, but the commission will give Biden cover to toe the dark money line.

And these same left-wing dark-money groups agitating for Court-packing are among the same groups who are unashamedly trying to intimidate Justice Breyer into retiring. Arabella-funded Demand Justice launched an unseemly “Retire Breyer” campaign just days after Breyer spoke out against Court-packing in an address at Harvard Law School.

Hopefully senators like Joe Manchin and Kyrsten Sinema, who have stood against Court-packing and eliminating the Senate filibuster, will be able to resist the pressure from radicals in their own party who want to pack the Court. That would put them in the category of the courageous Democratic senators of the 1930s whom a Senator Biden once praised for resisting executive overreach.

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