Bench Memos

Law & the Courts

Some Thoughts on Left’s Court-Packing Bill

1. As political theater goes, yesterday’s announcement by a few Democrats of a proposal to expand the Court from nine to thirteen justices strikes me as very dull. Any member of either House can offer a bill on anything. The fact that Ed Markey is the lead sponsor in the Senate is a sign of weakness, not strength. And why did it take nearly three months to announce this legislation?

2. The bill is very unlikely to be enacted. President Biden refused to support Court-packing in the presidential campaign, and he probably would have been defeated if he had supported it. The commission on Court reforms that he has instead set up will take a long time to produce a report that is very unlikely to support Court-packing.

3. A primary effect (and perhaps a primary goal) of the bill is to stoke the grievances of an ill-informed progressive base. Many folks on the Left have convinced themselves that Republicans acted outrageously on the Scalia vacancy. Never mind that President Obama’s own former White House Counsel acknowledged that she would have recommended exactly the same course of action if the political situation were reversed. Never mind that Joe Biden and Chuck Schumer had made the same threat years before. Never mind that the Left never threw its support behind Obama’s nomination of Merrick Garland (but instead hoped that Hillary Clinton would nominate someone much younger and much more liberal).

4. Strategists on the Left seem to have difficulty seeing more than one step down the road. They rolled out the unprecedented campaign of partisan filibusters against lower-court nominees in 2003 and then reacted with outrage when Senate Republicans used the same tactic (to a lesser extent) against Obama nominees. They then successfully pushed for the abolition of the filibuster for lower-court judges in 2013, promised during the 2016 campaign that they would abolish it for Supreme Court nominees if Republicans tried to filibuster Hillary Clinton’s pick, and then foolishly filibustered President Trump’s nomination of Neil Gorsuch, thus creating the only scenario in which Republicans would unite to abolish the Supreme Court filibuster. But for their strategic folly, Justice Kavanaugh would never have been confirmed, and Trump also would not have been able to fill the Ginsburg vacancy.

5. If the bill were ever enacted, the Left would be destroying the Court in its effort to steal it. Any controversial ruling in which the new appointees made the decisive difference would have a weak claim to legitimacy. And further rounds of escalation—17 justices, then 23, then 39—would ensue.

6. Perhaps the real goal of the bill is to cause some of the conservative justices to become very timid. There is, alas, reason to think that similar intimidation efforts have succeeded before. If the justices are serious about defending the proper independence of the judiciary, they should stand strong and make clear that they have not been cowed.

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