This vote to make Amy Coney Barrett the 115th Supreme Court justice will be more than a confirmation. It will be a dispensation, according to former Vice President Joe Biden and various Democrats. They have cited the vote as relieving them of guilt for changing the Supreme Court to manufacture a liberal majority. Like kids who dare others to step over a line, Democrats insist that filling this vacancy will invite changes ranging from packing the Supreme Court to removing its authority to rule in certain cases.
But the line the Senate will step over is set by the Constitution, while the proposals from Democrats would retaliate against a power granted in the Constitution. Democrats are floating a parade of horrible ideas to reform the Supreme Court and negate the growing conservative majority. Biden said that it is “out of whack” and, as president, he would assemble a new commission to study the “alternatives that go well beyond packing.” The commission would report to him 180 days after his inauguration.
Polls show that almost 60 percent of Americans oppose the court packing scheme backed by Democrats, including Senator Kamala Harris, who is of course on the ticket with Biden. Still one critical person not surveyed was the late Justice Ruth Bader Ginsburg, a liberal lion who denounced such a scheme as ensuring the utter destruction of the Supreme Court.
The New York Times and Siena College found just above 30 percent favor court packing. That is a familiar figure over the last four years, as the same 30 percent of both parties have supported the most destructive measures and rhetoric. Those extremes continue to control our politics, but the vast majority of us in the middle watch in disbelief as Senate Democrats today embrace one of the most reviled tactics in our history. They are not alone as a host of academics are lending credibility to court packing.
Michael Klarman of Harvard attacked the foundation of Congress before the Supreme Court. He condemned a “malapportionment” in the Senate which he believes gives Republicans greater power, and referred to their refusal to vote nominee Merrick Garland as “stealing a seat.” While it was controversial, and I was among those calling for a vote on Garland, that decision was allowed under the Constitution. Yet Klarman clearly calls it court packing to justify any act of retaliation as he said, “Democrats are not initiating such a spiral. They are simply responding in kind.”
Klarman said not to worry about Republicans responding with their own court packing scheme when they return to power. He insists Democrats can change the system so Republicans will “never win another election” without abandoning their values. He concedes that “the Supreme Court could strike down everything I just described” so it has to be packed in order to advance to allow such changes to occur. Here are some of the other wacky proposals out there to reform the Supreme Court.
Several academics argue for an alternative which moves in the opposite direction. If you cannot make the branch larger, then shrink its authority. By enacting what is known as jurisdiction stripping, Democrats can bar federal courts from reviewing certain types of legislation. Faced with a conservative bench, Democrats in control of Congress Would make the judiciary into a nullity to wield unchecked authority with various issues. Assuming courts would allow such a move, it then creates a race to the bottom as more legislation is protected from judicial review.
Another alternative is to leave the Supreme Court at its current size but mandate supermajority decisions. Congress would mandate at least six out of the nine justices or even unanimity in rulings for certain types of cases or laws. It is ironic since, against the advice of many, Democrats removed the Senate filibuster for judicial nominations when it held the majority. This changed protections for a minority in the Senate. In this case, Democrats would designate favored types of cases protected by supermajority rules, thus shaping the Supreme Court votes.
Pete Buttigieg and some academics have also proposed disregarding any pretense of independent justices. They would convert the Supreme Court into a kind of judicial Federal Communications Commission with both the Democrats and Republicans each selecting five justices who would select five more from federal courts to serve terms of one year. That would make the Supreme Court a crude reflection of our chaotic politics.
The Supreme Court is reviewing such a system with Carney versus Adams. The case must be familiar to Biden since it deals with a Delaware mandate that the seats in the state Supreme Court be divided between Democrats and Republicans, preventing an independent from becoming a justice. In Delaware, a balanced court means you should first establish that you are from the right party before you can mete out justice. The proposal would mean an often shifting court and, because the justices would be chosen based on party, they likely would become pawns in politics.
Another proposal would tackle the conservative majority by turning every judge into an associate justice. A lottery would be held every two weeks to select nine justices to hear cases, with each panel limited to no more than five judges nominated by a president from the same party. Senator Bernie Sanders even endorsed the idea. However, most Americans are unlikely to want to reform the Supreme Court with a lottery alternative.
I am not opposed to reform of the Supreme Court. But the commission is not about reform. It is about schemes to achieve partisan outcomes from the bench. Biden offers the institution as the vehicle for the frustration of the 30 percent of his base which demands extreme measures to satiate their anger. He once denounced court packing as a “bone headed idea” but he would convert terrible proposals into bona fide rules.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.