By appointing a commission to study changes to the Supreme Court, President Joe Biden has alarmed the opponents of court-packing while disappointing the supporters.
Mitch McConnell, the Kentuckian who leads Senate Republicans, said the establishment of the commission is “a direct assault on our nation’s independent judiciary and yet another sign of the Far Left’s influence over the Biden Administration.”
Left-wing publications were less impressed. In the Nation, Elie Mystal wrote that the commission showed that Biden “doesn’t want a solution; he wants an excuse to do nothing.” Brian Fallon, head of the activist group Demand Justice, said it was “hard to disagree.”
Their complaints: The commission has not been asked to make any recommendations. It has too many conservatives. And Fallon and Mystal aren’t on it.
Congressional advocates of court-packing are moving ahead as though the commission doesn’t exist. They have introduced legislation to add four justices, just enough to give the court a majority of Democratic appointees instead of Republican ones.
The progressives are right to see the commission as a way for Biden to shelve the idea of packing the court. They’re wrong, though, to think the idea ever had a realistic path to fruition.
The court has had nine justices since 1869. Biden knows that when Franklin Roosevelt tried to get a Congress with large Democratic majorities to expand it so he could make more appointments, it handed him a rare crushing defeat. He knows that Justice Stephen Breyer, one of the Democratic appointees on the court, has opposed the idea, just as Justice Ruth Bader Ginsburg did. The president is probably also aware that the idea polls abysmally.
So is everyone else in politics. Republicans would love to hold a floor vote on court-packing, so that Democrats in Congress would have to choose between angering their party’s hard core and looking like an extremist to everyone else.
As soon as the legislation was introduced, House Speaker Nancy Pelosi said any action would have to wait on the commission. She is using the panel to serve one of its intended functions: letting Democrats tell the most gullible progressives they are working on far-reaching changes to the courts while avoiding taking the heat that would come from doing anything real.
Some progressives hope that the mere talk of court-packing will cause conservative justices to show restraint in overturning liberal precedents and invalidating liberal laws. Most conservatives think this pressure campaign is an illegitimate threat to judicial independence. Both sides see Roosevelt’s court-packing as a case study in how such plans can influence justices.
The story goes that in 1937 Justice Owen Roberts stopped blocking New Deal legislation because he feared court-packing. He had voted to strike down minimum-wage laws, but joined a majority that upheld a minimum wage weeks after Roosevelt announced his plan to expand the court. It was “the switch in time that saved nine,” a paraphrase of a comment that columnist Cal Tinney made at the time.
There are, however, reasons to doubt this popular account. Most historians agree that the minimum-wage decision was reached before FDR’s announcement, and that opposition to the court-packing effort was unmistakably building before the decision came down.
One possibility is that Roosevelt’s landslide re-election in 1936 and the widespread criticism of a conservative court influenced Roberts by themselves, but also led the president to hubris.
The Roberts on today’s court, Chief Justice John Roberts, is widely thought to tailor his decisions to minimize political controversy around the court. But his political antennae, and those of the other justices, may be fine enough to detect that the message of the commission is that the threat of court-packing is empty.
In a best-case scenario, the new commission would not obsess about court-packing but look more deeply at some of the other issues within its purview. It would address some specific, related problems, such as the lack of transparency in the Supreme Court’s “shadow docket” and the overreaching national injunctions too many district courts are issuing.
It could also help to build a consensus that the courts have assumed a dangerous level of power in our system. Among progressives, there has been a welcome, if opportunistic, reappraisal of the courts’ role, one that ought to be encouraged.
Whatever it says, though, the commission is not going to have a big impact. The most likely result is what Nebraska Republican Senator Ben Sasse predicts: “This commission’s report is just going to be a taxpayer-funded door stopper.”
Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review and a visiting fellow at the American Enterprise Institute.
