When in doubt, appoint a commission
NOW THAT conservatives have a number of justices on the United States Supreme Court—in some rulings, even a majority—it is apparently time to rethink the whole thing. That is, perhaps there should be more members on the court.
For 70-something years, liberals on the court have changed the United States in a myriad of ways, sometimes for the better, but a one-term Republican president recently appointed three justices to the high court, so something must be done.
That seems to be the thinking for so many of our friends on the left. And since the left drives this particular administration’s presidential limo, something has been. Done, that is.
President Biden has ordered a 36-member commission to study whether the U.S. Supreme Court needs an update. Some quarters suggest adding seats, because a 6-3 conservative majority cannot stand. Or perhaps the nation could get by with implementing term limits for justices sitting on the nation’s highest court.
Who knows, maybe term limits for conservative justices only. But let’s not give them ideas.
Court-packing has been tried before. A president named Franklin Roosevelt tried it in 1937. At the height of his popularity and power, too. But even beloved FDR, fresh off a landslide presidential re-election victory (60-plus percent of the vote! 98.5 percent of the Electoral College! carried everything but Maine and Vermont!), couldn’t pull it off. The American people and Congress said that nine members of the court—a number established in 1869— worked fine, thank you.
But Joe Biden promised during the campaign to create such a commission, one that he calls bipartisan. Others say the committee leans to the left. (You wouldn’t expect him to appoint one that leans to the right.)
“Advocates for expanding the court say that the conservative majority is out of sync with both public views and mainstream legal thinking, and that increasing the number of justices would correct that,” The Wall Street Journal reports. “Term-limit proponents say lifetime appointments also keep the court from reflecting the public’s wishes and give some presidents too much sway.”
Well. There’s a lot to unpack there. The conservative majority is out of sync with public views? That was never an argument when a liberal ruling came down in the past, many of which were out of sync with public views. Besides, since when have public opinion polls been a guiding principle for court rulings? If the point is to “correct” a court into following mainstream public opinion, then why have a high court? Why not put everything to a vote of the people?
As far as reflecting the public’s wishes, that reminds us—once again—of something Paul Greenberg told some green editorial writers way back when: One of us asked why we didn’t have an editorial board for the opinion section. Because, the rookie duly recited from his J-school lessons, the editorial page should reflect the public’s opinions. To which Paul laughed out loud and said, “No it shouldn’t! It should lead the public’s opinions!”
Imagine the U.S. Supreme Court reflecting the nation’s opinions. Would we have gotten Brown v. Board of Education in 1954? Would we have gotten Miranda in 1966? Or Obergefell v. Hodges in 2015? In all those cases, the court was pulling, not reflecting.
No court is apolitical, no matter what the textbooks say. But court-packing would make the high court uber-political. Does anybody believe the Republicans would just take it? That is, when their turn comes with the presidency and Congress again (and it will), does anybody think they wouldn’t pack it right back?
After a few swings of the American pendulum, the court might have dozens of justices. Just like this 36-member presidential commission. Speaking of which . . . .
W E HOPE this commission is just a way to appease some of the more reactionary folks on the president’s team. And not a serious effort to change the nation’s government. You know, like most editorial boards, which have a lot of meetings but usually go along with the publisher.
The best thing this commission could do is issue its committee report, signifying nothing, and disband. And have the report gather dust on some shelf for the next 100 years. Where it could do little harm.
Over the years, the U.S. Supreme Court and all its chief justices have gone out of their way to avoid appearing political. Or at least avoid appearing partisan. Adding more justices to overcome temporary partisan disadvantage would only add to the number of Americans who mistrust the feds.
FDR’s court-packing proposal was so unpopular that even his vice president disapproved of it. There’s no chance of such a public disagreement among the principals today. Which is why as long as this commission exists, something will hang in the air. Like the smell of wet socks.