Democrats again recycle court-packing schemes

Progressive activists remain committed to tearing down the Supreme Court on one hand as, without irony, they fret about threats to democracy on the other. In the wake of recent decisions looking askance at the use of race in college admissions and nixing a Biden administration plan to unilaterally forgive billions in student loan debt, they’re again threatening to pack the court.

Nevada Rep. Steven Horsford, upset over the affirmative action decision, got into the act last month, questioning the legitimacy of the institution.


Federal judges are charged with assessing the constitutionality of congressional and executive branch actions regardless of popular opinion. But polls reveal that both the student loan and affirmative action decisions enjoyed public support and were hardly outside the mainstream.

In fact, it’s notable that much of the criticism is based less on constitutional doctrine than on liberal disappointment that the majority justices dare erect roadblocks to a progressive agenda at odds with the principles articulated in this nation’s founding document.

So far, President Joe Biden has resisted pushing any shortsighted and ill-conceived court expansion plan, but he did add fuel to the fire in the wake of the affirmative action ruling by telling reporters, “This is not a normal court.”

Again, note that his barb didn’t include any explanation for how racial discrimination in college admissions comports with the 14th Amendment.

But Biden may be correct about one thing: This is not a normal court — if by “normal” one means a court that reflects historical standards for overturning precedent or declaring legislation unconstitutional.

As Jonathan Adler points out in the July 31 issue of National Review, “the Roberts Court is meaningfully less ‘activist’ than its post-WWII predecessors, at least as measured by conventional metrics.”

Far from being “radical,” as progressives shout from the hills, “the current court is less likely than its predecessors to overturn precedents or invalidate legislative enactments. If such actions are the hallmark of judicial imperialism, the Roberts Court is not particularly imperialist,” observes Adler, a professor at Case Western Reserve School of Law.

Adler based his analysis on data from the Library of Congress and the Supreme Court database. He concedes that the court in recent terms has heard fewer cases and that the court’s conservative bent will influence the types of cases it accepts.

But, he writes, “accusations that the court is vaporizing precedent and trampling democratic enactments — suggesting that it is not merely making bad decisions but doing so in an illegitimate way — are part of a broader effort to delegitimize it.”

And that’s dangerous and counterproductive to the long-term health of our republic.