No reason to pack the court

No reason to pack the court
© New York Times/Pool

Perhaps the U.S. Supreme Court is not as ideologically tilted as some have led the country to believe. Members of the “Presidential Commission on the Supreme Court of the United States” should take notice.

When Justice Anthony Kennedy retired and former President TrumpDonald TrumpTrump PACs brought in over M for the first half of 2021 Chicago owes Trump M tax refund, state's attorney mounts legal challenge Biden hits resistance from unions on vaccine requirement MORE nominated Brett KavanaughBrett Michael KavanaughOn The Money: Biden asks Congress to extend eviction ban with days until expiration | Economic growth rose to 6.5 percent annual rate in second quarter Biden calls on Congress to extend eviction ban with days until expiration An obscure Supreme Court ruling is a cautionary tale of federal power MORE to the court, progressives decried and slandered the nominee. Leftists bemoaned the loss of the centrist Justice Kennedy and predicted that a Justice Kavanaugh would lurch the Supreme Court to the ideologically extreme right.  

When Justice Ruth Bader GinsburgRuth Bader GinsburgBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  Anti-abortion movement eyes its holy grail MORE died weeks before the 2020 election, progressives went into full panic mode with their opposition to nominee Amy Coney BarrettAmy Coney BarrettBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  The Hill's Morning Report - Presented by Facebook - Jan. 6 probe, infrastructure to dominate week MORE. Even senators posted oversized pictures of children who almost certainly would lose their health insurance coverage because, we were assured, a Justice Barrett would cast the deciding vote against the Affordable Care Act.  


It turns out that claims of the court’s center-left demise have been grossly exaggerated. Data from the most recent term indicate that the court’s makeup proves that even on some of the most controversial matters, justices appointed by Presidents Bush, Clinton, Bush, Obama and Trump are rarely divided into ideological extremes.  

According to the “Stat Pack,” released by SCOTUSBlog, of the 55 opinions authored in the last term, the justices were unanimous in 26 — or 43 percent of the time. That means all nine justices agreed nearly half of the time. Just 15 percent of the time were the justices split into supposedly ideological lines.  

Add to those seven more times when only one justice broke from the majority for an 8-1 decision and 16 more times when the vote was either 7-2 or 6-3, both of which are considered to be strong majorities.  

On supposedly controversial matters, there really was little disagreement. For example, on Dec. 10, 2020, the justices handed down Tanzen v. Tanvir, a case adjudicating the controversial Religious Freedom Restoration Act (RFRA). We were told to expect a sharply divided court, but that turned out to be wrong. All but Justice Barrett, who did not take part in the case, voted to uphold the principles of RFRA under examination. That means Justices Samuel AlitoSamuel AlitoBill would honor Ginsburg, O'Connor with statues at Capitol No reason to pack the court Justice or just desserts? Trump, Cosby and Georgia cases show rising cost of political litigation MORE and Sonia SotomayorSonia SotomayorSenate panel votes to make women register for draft No reason to pack the court Supreme Court ruling opens door to more campaign finance challenges MORE found a path to agreement on the issue of religious freedom.

Most court-watchers thought Fulton v. City of Philadelphia would be the most divisive of cases of the term. It squared the religious liberty of Catholic Social Services against the pro-LGBT+ policies of Philadelphia. Again, all the justices found a path to unanimous agreement that a Catholic-run adoption and foster care agency were not the religious bigots the left had made them out to be. That means Justice Clarence ThomasClarence ThomasAn obscure Supreme Court ruling is a cautionary tale of federal power Overnight Health Care: St. Louis reimposes mask mandate | Florida asks Supreme Court to block CDC's limits on cruise ship industry Florida asks Supreme Court to block CDC's limits on cruise ship industry MORE, appointed by George H.W. Bush, agreed with Justice Elena KaganElena KaganCongress should butt out of Supreme Court's business No reason to pack the court American freedom is on the line MORE, an appointee of Barack ObamaBarack Hussein ObamaMillennial momentum means trouble for the GOP Biden's Cuba problem: Obama made a bet and lost Democrats need a coherent response to attacks on critical race theory MORE, and Justice Barrett, Trump’s appointee, voted with Bill ClintonWilliam (Bill) Jefferson ClintonOvernight Health Care: CDC details Massachusetts outbreak that sparked mask update | White House says national vaccine mandate 'not under consideration at this time' Biden rolls dice by getting more aggressive on vaccines Amanda Knox blasts 'Stillwater' movie: 'Does my name belong to me? MORE’s nominee, Justice Stephen BreyerStephen BreyerSenate panel votes to make women register for draft Biden's belated filibuster decision: A pretense of principle at work Klobuchar: If Breyer is going to retire from Supreme Court, it should be sooner rather than later MORE


And, remember the fear during Justice Barrett’s confirmation hearings that she would vote to end ObamaCare? That didn’t happen. In an 8-1 decision, only Justice Neil GorsuchNeil GorsuchNo reason to pack the court Democrats under new pressure to break voting rights stalemate Trump 'very disappointed' in Kavanaugh votes: 'Where would he be without me?' MORE dissented.

The sky has not fallen. Our democratic republic remains strong. And we should not trust anyone to predict the outcome of future Supreme Court decisions or listen to fearmongering.

Perhaps PresidentBiden should disband the Presidential Commission on the Supreme Court of the United States. It is yet another government commission in search of a problem. The Supreme Court is functioning as it should, with justices more often in agreement than not. Partisan efforts to manipulate the court and reduce its independence should be rejected.

In 1937, the Senate Committee on the Judiciary — composed of seven Democrats and three Republicans — issued a report recommending the rejection of Franklin Roosevelt’s court-packing proposal. It was another unanimous decision, this time rejecting FDR’s scheme to pack the court (not unlike today’s commission). The Senate committee declared that partisan court reform measures, such as court-packing, “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Yet, here we are, presented once again with demands to “reform” what is not, and never has been, in need of reform. As the last safeguard for civil liberties, our independent judiciary is essential. No one should politically tinker with the judiciary — what the senators in 1937 called “the priceless heritage of every American.”  

Jeremy Dys (@JeremyDys) is special counsel for litigation and communications for First Liberty Institute, a nonprofit legal organization dedicated to defending religious freedom.