In 1983, then-Sen. Joe Biden of Delaware called “court-packing” a “bonehead idea,” and warned in 2019 during a presidential primary debate that restructuring the Supreme Court by adding more justices would destroy “any credibility the court has at all.”
During the 2020 presidential campaign, Biden declined to say whether he would support expanding the court.
Now, it seems, President Biden has developed a fondness for boneheaded notions. Last week, he named a big bipartisan commission to study the future of the court. A few days later, Democrats in the House and Senate announced a forthcoming bill to add four more justices to the high bench.
Will we wake up one day soon to find 13 justices on the court? No. But Biden is slowly mainstreaming the idea of a larger court and hoping we gradually grow more comfortable with it.
Nothing has changed since Biden’s 1983 assessment—oh, except that the court today leans conservative—and liberals don’t like it.
But you don’t get the sense that liberals on the court want to make it bigger. Justice Stephen G. Breyer has said, “If the public sees judges as politicians in robes, its confidence in the courts—and in the rule of law itself—can only diminish.” And even the late justice Ruth Bader Ginsburg didn’t see the logic of making more justices.
“If anything would make the court appear partisan it would be that,” she said in 2019 about court expansion. “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.’ So I am not at all in favor of that solution to what I see as a temporary situation.”
The movement to restructure the court enjoys deep pockets, thanks in part to a nonprofit fundraising behemoth called Arabella Advisors. Arabella is an umbrella organization that manages four major nonprofits that, in turn, host more than 300 policy projects, some of which are laser-focused on the federal judiciary. It’s noteworthy that when Republicans organize themselves to support conservative judges, the left writes furiously of “dark money.” But when the left does the exact same thing, why, it’s just a lighter shade of gray.
Biden is uncorking the commission to keep his left flank happy; and few people who follow these things believe it will finish its work by cooking up more justices on the bench. But it is likely that he is laying the predicate for such a move years from now.
You might even call this the “Never You Mind That Now”strategy, in which the Democrats are raising the prospect of a bigger court today only to seed it in our brains for their later use. This is a little like an arsonist who sets a fire so that he can put it out and become a hero. In the liberal version of this opera, a monster is created—the legislation to increase the court—so that the party can then kill it this round. When House Speaker Nancy Pelosi, D-Calif., said she’d never allow the bill on the floor, the audience heaved a sigh of relief.
But the commission, if nothing else, serves the purpose of making something once unimaginable at least a topic of conversation. Basically, you get people talking about something, back it up with evidence (or commissions) and, gradually, the idea becomes less unpopular. People even forget why it was once objectionable.
Remember when “socialism” was a dirty word? Thanks to Sen. Bernie Sanders, I-Vt., a far-left ’60s radical who for most of his career was taken seriously by no one outside of Vermont, we now have lesser, mainstream socialists in public office. And Sanders is now a snugly, flannel-clad grandpa beloved by America’s young. He’s not scary at all—and neither is socialism.
Ideas that once seemed crazy can, in time, sound almost reasonable. And when the balance of power in our nation is so closely divided, a foot in a door here can have an enormous impact later.
Meanwhile, the objective has been achieved. The threatening sword of restructuring the court is aloft and hangs over the third branch of government. This alone is enough to undermine trust in the court’s independence and poses a threat to democracy itself.
Boneheaded was—and is—the correct word.