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Democrats’ Court-Packing Two-Step

By The EditorsNational Review

House Speaker Nancy Pelosi announces the House of Representatives managers for the Senate impeachment trial of President Donald Trump during a news conference on Capitol Hill, January 15, 2020. (Leah Millis/Reuters)

President Biden and the Democratic Party still cannot answer a simple question: “Will you, or will you not, blow up the judicial branch of the United States government?”

This should not be a tough one — especially for Joe Biden. Last time a Democratic president considered destroying the Supreme Court, his party described the proposal as “the most terrible threat to constitutional government that has arisen in the entire history of the country” and recommended that it “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” As a senator, Biden concurred with this assessment. “Roosevelt,” Biden said, “I remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view, unveiled his Court-packing plan.”

Evidently, the presidency does that to some men.

Perhaps aware of the gravity of what they are attempting, the Democrats are running a two-track play. President Biden, through whom many of the party’s most radical ideas are laundered, is simply refusing to answer whether he supports the idea, and, in an attempt to extend the uncertainty, has unveiled a bipartisan commission to “study” the issue. Equally wishy-washy is Nancy Pelosi, who generated headlines yesterday by saying that the current proposal would not get a vote in the House, but did not rule out the idea so much as hide behind Biden’s commission and insist that it needed to be “considered” and is “not out of the question.” In the meantime, less protean Democrats are making the affirmative case. A bill introduced by no less than the chairman of the House Judiciary Committee and the chairman of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet would add four new justices to the Court — exactly the number needed to hand Democrat-approved judges a majority. 

Subtle, this is not.

The justifications that the Democrats have proffered are ridiculous on their face. They claim that the Republicans “packed” the Court themselves when, as the party in the majority in the Senate, they merely used their constitutional powers to approve or reject the candidates they were sent. They claim that the Court must be expanded to keep up with population growth and the workload that results — a contention that miscasts what the judicial branch does, and that does not make sense on its own terms (because all justices participate in every case, a court of 13 will not be able to take more cases than a court of nine, and in any event, the Court’s docket is smaller than it was a half century ago). And, finally, they claim that the Court is suffering through a crisis of legitimacy — which, given that it is more popular and more trusted than it was prior to the additions of Justices Gorsuch, Kavanaugh, and Barrett, represents the very opposite of the truth.

What is the truth? That, as it grows more progressive, the Democratic Party senses that it will more frequently hit up against the Constitution itself, and that, when it does so, it is going to need judges who are not interested in what that Constitution actually says. To comprehend this is to comprehend the whole grubby initiative, which will confer benefits upon the Democrats irrespective of its success. If Biden and Co. succeed in their undertaking, the Court will become merely another legislature, there to rubber-stamp the Democratic Party’s transgressions. If the endeavor fails, the Court may nevertheless be so intimidated by the attempt that they begin to bend at the knees. And, either way, the public is taught to mistrust Article III.

There is only one way out of this treacherous scheme, and that is the emphatic rejection that the congressional Democrats of 1937 envisioned. It must be rejected by the Republicans. It must be rejected by the Democrats. And, ultimately, it must be rejected by the people — who did not vote for a regime consumed with freeing itself from any meaningful constitutional restraint, and do not deserve to live under one.


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