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Biden's court-packing theater could tame the Supreme Court's conservatives

Biden's court-packing theater could tame the Supreme Court's conservatives
© Greg Nash

It is human nature that we tend to remember the bright side of history, especially when it’s the side that supports lessons we hope to apply in the here and now. It gives us comfort that the sky is not falling.

So it is with conservatives and the Biden court-packing theater, also known as the Presidential Commission on the Supreme Court

Court-packing, of course, became a major issue in the 1930s, when progressives were, as today, both ascendant and frustrated. They consolidated power thanks to President Franklin D. Roosevelt’s landslide 1936 reelection, with his coattails increasing the Democrats’ supermajority lock on both congressional chambers. Yet core New Deal agenda initiatives that strained against constitutional limits on central government power were blocked by a conservative-leaning Supreme Court.

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FDR’s court-packing threat failed, ostensibly. That last little word — ostensibly — is the one we like to forget.

We’d rather remember that court-packing was so palpably a threat to the high court’s integrity as a judicial institution that it was rejected with gusto. The lesson we take away is that: So unthinkable was the court-packing scheme that the most popular, consequential progressive president in American history, at the very apex of his power, was swatted down by his own party.

But that’s a half-truth. The other half of the story, the inconvenient history, is that the court-packing threat worked.

Sure, Roosevelt didn’t get his additional bench slots to fill. But that was not the main objective of the threat. FDR wanted his program. And he got it.

The court-packing threat failed only as an ambitious artifice to alter the make-up of the judiciary. It succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry. As debate raged over the failed court-packing proposal, the court executed its “switch in time that saved nine,” the notorious volte-face in which previously untenable regulatory regimes were suddenly green-lighted under the guise of promoting “the health, safety, morals and welfare of the people” — as the court put it in West Coast Hotel Company v. Parrish (1937). 

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The rest, to coin a phrase, is history: Nearly a century of the Supreme Court’s erosion of structural constraints on government power, especially at the federal level, and the consequent turbo-charging of progressive governance.

To be sure, the court-packing commission is not a high priority for President BidenJoe BidenBiden's quiet diplomacy under pressure as Israel-Hamas fighting intensifies Overnight Defense: Administration approves 5M arms sale to Israel | Biden backs ceasefire in call with Netanyahu | Military sexual assault reform push reaches turning point CDC mask update sparks confusion, opposition MORE. He is conducting this exercise because he has no real choice. 

Recall that, prior to the 2020 election, Biden realized he could not afford to support court-packing. First, it was unpopular with voters and contradicted Biden’s claim to be a moderate “unifier.” Second, he would have looked terrible had he done a 180 on court-packing; as a senator, he had described FDR’s gambit as “a bonehead idea” and a “terrible, terrible mistake” that “put in question … the independence of the most significant body in this country,” the Supreme Court. Moreover, Biden for decades had been a stalwart supporter of the Senate filibuster, which would need to be nuked to get court-packing done.

Yet, as always, Biden was afraid of offending progressives. In Democratic politics, Biden has always been a lagging indicator, not a leader. His will to resist the activist left involves assessing the political viability of its every agenda item, not hewing to deep principle. Biden rightly realized that, though court-packing is not viable, it is nevertheless a matter of urgency for “woke” progressive visionaries (what isn’t?). 

So Biden did what Biden does. To get out of the quandary, he promised that, if elected, he’d convene a panel to study the court-packing issue. Having made that big-wind-no-rain commitment, he had to follow through. Predictably, he has stacked the panel with progressives. This way, he can tell the radicals he tried while assuring the country that he didn’t actually do anything radical. 

The White House knows that Washington is expert at convening blue-ribbon commissions, allowing their investigative processes to sap the zeal for “reform,” and then ignoring the commission findings as other events distract public attention. That’s what will happen here.

We are not in a situation like the post-9/11 period, when a catastrophic event produced public consensus that remedial action was necessary. Roughly half the country opposes court-packing. Republicans have the votes to stop it. The Supreme Court is not going to be expanded to provide Biden and Democrats with extra seats, in which they can install judicial liberals to “balance” the court’s current conservative majority, as they euphemistically put it — or to ensure outcomes progressive favor, their actual objective.

But that does not mean the theater is pointless. FDR was able to use the court-packing threat to pressure the high court to change course. Progressives will attempt to use Biden’s gambit to do the same thing. 

This is a smart political play. In Chief Justice John Roberts, the court is led by a jurist who prizes the tribunal’s reputation as a nonpartisan institution over the imperative to reach correct results — if those results will be condemned by the dogmatically progressive media-Democrat complex.

The court-packing rhetoric picked up steam in the 2020 campaign but it actually stretches back to 2017, when Republicans refused to confirm an Obama nominee, Judge Merrick GarlandMerrick Garland'Tiger King' seeking presidential pardon from Biden Capitol riot fuels debate over domestic terror laws Senate Democrats urge Garland not to fight court order to release Trump obstruction memo MORE (now Biden’s attorney general), for the vacancy opened by Justice Antonin Scalia’s death. This enabled President TrumpDonald TrumpGOP-led Maricopa County board decries election recount a 'sham' Analysis: Arpaio immigration patrol lawsuit to cost Arizona county at least 2 million Conservatives launch 'anti-cancel culture' advocacy organization MORE to make the first of what became his three appointments to the high court.

These fraught confirmation battles have already influenced Chief Justice Roberts. He occasionally has joined with the court’s liberal bloc in big cases, other times used his power to assign opinions to ensure that potential conservative victories were as narrow as possible, and still other times influenced his court not to grant review of cases that presented controversial questions.

With the confirmation of Justice Amy Coney BarrettAmy Coney BarrettOvernight Health Care: Supreme Court takes case that could diminish Roe v. Wade | White House to send US-authorized vaccines overseas for first time White House: Biden committed to codifying Roe v. Wade regardless of Miss. case Supreme Court sides with oil companies in Baltimore case MORE, Trump’s final appointee, the putative conservative majority is now stronger. This theoretically reduces Roberts’ influence — shifting the court’s “swing” hinge from Roberts to the more reliably conservative Justice Brett KavanaughBrett Michael Kavanaugh Klobuchar offers tribute to her father, who died Wednesday Conservative justices split in ruling for immigrant fighting deportation Supreme Court weighs whether to limit issuance of exemptions to biofuel blending requirements MORE

Still, the court’s emerging center is a trio formed by Roberts, Kavanaugh and Justice Elena KaganElena Kagan Distortions in census numbers give a boost to Team Trump Court watchers buzz about Breyer's possible retirement Sotomayor blasts Kavanaugh's decision on juvenile life sentences MORE, an Obama appointee. Throughout the Trump years, Justice Kagan played her minority hand deftly. Biden’s commission, and the continued saber-rattling about drastically “reforming” the judiciary, aims to strengthen her position, as Roberts and — the left hopes — Kavanaugh become increasingly cautious.

The Biden court-packing commission won’t alter the Supreme Court. But the progressive court-packing diatribes could tame the court’s conservative majority. It worked for FDR.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.