Biden was right: Expanding the Supreme Court is a boneheaded idea
The demand has been a staple of media interviews since the U.S. Supreme Court overturned Roe v. Wade last week: Expand the Supreme Court!
Sen. Elizabeth Warren (D-Mass.): “I believe we need to get some confidence back in our court and that means we need more justices on the United States Supreme Court.”
Rep. Adam Schiff (D-Calif.): “We can expand the court. Codify rights. And move America forward again.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.): “Not only should we look at expanding the Supreme Court, but I think we need to acknowledge that the Supreme Court of the United States has very few checks and balances.”
Sen. Ed Markey (D-Mass.): “Again, I ask my colleagues in the Senate what other judicial outrage must we endure from the illegitimate, far-right majority on the Supreme Court before we act? Fight back and expand the Court now.”
So, what kind of expansion are we talking about? Try moving from nine judges, which has been in place for 150 years, to 13 judges. Why 13 judges? Because if a Democratic president adds four justices, the 6-3 conservative-to-liberal balance of the court will likely become a 7-6 advantage for the blue team.
But have Democrats really thought this thing through? Because let’s say four justices are added while Democrats control the House, Senate and White House. What does anyone think would happen when Republicans take back the House and likely the Senate after the midterms? The GOP would likely expand the 13-seat court to 17 seats, thus reestablishing a three-seat majority with a 10-7 court. Perhaps down the road Democrats will counter by expanding the court to 21 seats. And before you know it, the Supreme Court will resemble an NFL roster.
Of course, very few journalists have bothered to present this scenario when lawmakers make these kinds of declarations on television. Perhaps the performance theater, and the prospect of going viral on social media, is too tempting to interrupt.
This road has been traveled before when Democrats controlled all of D.C., and it failed spectacularly despite Democrats having far greater majorities in the House and a popular president.
The date was February 5, 1937, when President Franklin D. Roosevelt introduced his proposal to expand the Supreme Court. The reasons are similar to those today’s Democrats are talking about: Decisions by the 1937 court, which was decidedly conservative and thereby rejected key components of the New Deal, simply could not stand. So, FDR decided the only way to get what he wanted legislatively was to expand the court to 15 justices.
“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said during one of his famous fireside chats. Roosevelt also claimed the court needed to be expanded to handle big case loads.
A law called the Judicial Procedures Reform Bill of 1937 was proposed under this guise: For every justice over 70 years of age, the sitting president could appoint an additional justice. This gambit would allow for six additional justices to be appointed by Roosevelt, who would face almost no resistance in the Democratic Senate.
But the president’s own party faced intense pressure from the public to reject the plan. The Supreme Court was seen as hallowed ground not to tinkered with by one man for obvious political gain. And in the end, the Senate easily rejected the Judicial Procedures Reform Bill by a vote of 70-22.
Today, President Biden deserves credit for his long opposition to expanding the court.
“It was a bonehead idea,” Biden said as a senator in 1983. “It was a terrible, terrible mistake to make. And it put in question, for an entire decade, the independence of the most significant body — including the Congress included in my view — in this country, the Supreme Court of the United States of America.”
White House press secretary Karine Jean-Pierre echoed that perspective on the president’s behalf earlier this week.
“I was asked this question yesterday, and I’ve been asked it before — and I think the president himself … about expanding the Court. That is something that the president does not agree with. That is not something that he wants to do,” Jean-Pierre told reporters on Air Force One.
Expanding the Supreme Court was a bad idea in 1937 and 1983, and it’s a bad idea now. But Democrats know their power is about to go away after the next midterm elections and are throwing a Hail Mary that will not see the end zone.
Joe Concha is a media and politics columnist.