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The Biden Commission and the Concept of Court-Packing

President Biden recently signed an executive order creating a bi-partisan commission that will study U.S. Supreme Court reform and, among other things, examine the size of the Court and the Justices’ lifetime appointments. The order excited partisan debate before the ink was dry.

Former President Trump, Senate Minority Leader Mitch McConnell, and a host of republican leaders and commentators have warned that the plan will lead to partisan “court-packing” efforts by Democrats.

Some liberals are, indeed, eager to expand the size of the Supreme Court from nine to eleven Justices, for the purpose of remedying the imbalance on the High Bench created by then Senate Majority Leader McConnell and President Trump. Progressives complain that the 6-3 configuration of the Court, demonstrably favoring conservatives, was achieved by “stealing” a seat in 2016 when McConnell refused in February of that year to hold confirmation hearings on President Barrack Obama’s nomination of Judge Merrick Garland to fill the seat held by the late Justice Antonin Scalia. Progressives also contend that Republicans behaved arbitrarily when they rushed to confirm Amy Coney Barrett to the seat held by Justice Ruth Bader Ginsburg, who died after the presidential election had begun.

As a candidate for the presidency, Biden said he believed it would be a mistake to add seats to the Supreme Court. In a speech at Harvard, Biden told the audience that Democrats should think “long and hard” about the long-term political implications for the nation before they changed the number of seats on the Court. President Biden’s commission precludes the 36 members—conservative and liberal—from making “policy recommendations.” Critics fear that the commission report will thus represent a failure to counter the way Republicans are said to have played hardball with judicial appointments. Democrats, it is contended, will have forfeited a golden opportunity to reinvigorate, and redress the imbalance of the third-branch of government, which has been packed with republican appointees.

The Constitution provides no textual guidance on the size of the Supreme Court. The decision is solely within the hands of Congress which, at various times, has changed the number of seats on the Court, typically in reaction to a crisis which the majority believed threatened American democracy. Since the Civil War period, there have been nine seats on the Court, but there is nothing sacrosanct about the number nine.

Is “court-packing” inappropriate? The late Chief Justice William Rehnquist, a lifetime Republican who was nominated to the Supreme Court by President Richard Nixon, didn’t think so. In fact, Rehnquist defended in a 1984 lecture, President Ronald Reagan’s “right” stack the Court with Republicans. There is no reason why a president should not “pack” the Court, he declared, that is, “appoint people to the Court who are sympathetic to his political and philosophical principles.”

Senator Barry Goldwater, a stalwart leader of Republican conservatives for many years, agreed with Justice Rehnquist. In 1975, he urged President Gerald Ford to nominate to the Court, Robert Bork, a young Yale Law Professor, about whom Goldwater observed: “He is young and a strict constructionist,” who “would give continuity to the kind of Court that you want for at least twenty-five years.” Ford bypassed Bork in favor of John Paul Stevens, for fear that Bork’s entrenchment in the Watergate scandal might undermine his chances for election in 1976, but Bork was nominated by Reagan years later, only to be rejected by the U.S. Senate.

The point is this. Presidents have relatively few opportunities during their time in office to shape the Court through exercise of their Article II authority to “nominate” candidates to the High Tribunal. Justices serve during “good behavior,” which essentially means they serve for life. This fact affords a president an exceptional opportunity to influence the configuration of the Court and thus the direction of the nation. This “invitation” is irresistible.

When opportunity knocks, presidents seize the moment to place like-minded men and women on the Court. Aside from President George Washington, no president had the opportunity to make more nominations to the Court than President Franklin D. Roosevelt, who made eight appointments. Nixon and Reagan ran against a “liberal” Court, and each sought through their nominations to redress social-policy rulings that were untenable.

If and when Supreme Court vacancies occur on President Biden’s watch, there is nothing in the historical record or the practice of his predecessors, to deny him the chance to reshape the Court in his image.

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