Will Biden Pack the Supreme Court?

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

President Biden’s Supreme Court Commission had its first meeting earlier this month.

In the eyes of this observer, the 36-member Commission looks to have been carefully constructed to produce gridlock.in slo-mo. From the NYT:

President Biden’s commission to evaluate proposed overhauls to the Supreme Court held its first public meeting on Wednesday, approving its bylaws, announcing the formation of a series of subcommittees and promising to hold hearings from expert witnesses in June and July.

The 36-member, ideologically diverse panel of scholars, lawyers, political scientists and former judges, which Mr. Biden named in April, was formed after calls by some Democrats to expand the number of Supreme Court justices. But the public meeting, conducted over videoconference and streamed live on the White House website, showed that the commission’s aspirations go beyond scrutinizing court expansion — or “packing” — proposals.

The commission, as The New York Times reported in April, will be made up of committees that will develop research for the full panel to consider. In addition to a working group examining the court’s size, it will have groups on other possible changes to the court, including creating term limits or a mandatory retirement age; placing greater restrictions on the court’s ability to strike down laws as unconstitutional; expanding the number of cases the court is required to hear; and limiting its ability to decide major issues without a full briefing and arguments.

I don’t believe Biden has much appetite for a Court-packing fight. Even if he did,  I doubt he could at this time muster sufficient Senate votes to enact a change.

Note that changing the Court’s composition wouldn’t require any constitutional amendment. Article III, Section 1 of the Constitution states there shall be a Supreme Court , but is silent on its composition.  And unlike provisions that specify when a super majority is necessary – the two-thirds treaty ratification requirement,  for example, the Constitution’s silence here too  means a simple majority of both houses of Congress would suffice

Here’s the relevant section:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Under what  scenario might Biden decide to engage in  a Court packing battle? I’d like to discuss one possibility.

“Voting Integrity” or Voter Suppression By Another Name

Whether you believe fraud occurred in the conduct of the 2020 election doesn’t matter. Republicans continue to stay on message and hammer the theme that extensive fraud occurred. Persistent repetition will implant that message in the minds of many  – regardless of whether  evidence supports the allegations. Don’t expect Republicans, who control a majority of state governments, to  adopt  a system of hand-marked paper ballots hand counted in public – the gold standard solution for deterring electoral fraud.

But guess what? Instead, Republicans will advance measures that just happen to jive with the party’s voting suppression strategy, dressed up as remedies to ensure “voting integrity.” Republicans know their objective  and since they control a  majority of state governments, little  stands in their way to obstruct enactment of voting legislation, following the marker set  inGeorgia, and last Friday Texas. Certainly not the sad sack Democrats, who have failed to pursue voting expansion legislation with a zeal matching that of Republicans for voter suppression.

According to The Texas Tribune:

Worked out by a conference committee after the two chambers passed substantially different pieces of legislation, the final version of Senate Bill 7 takes from both iterations to cut back early voting hours, ban drive-thru voting, further clamp down on voting-by-mail rules and enhance access for partisan poll watchers. It also now includes various additional rule changes that weren’t part of each chamber’s previous debate on the bill, adding new identification requirements for mail-in ballots. Lawmakers are expected to formally sign off on the agreement in the next day and send it to Gov. Greg Abbott for his signature before it becomes law.

The final bill keeps in its crosshairs initiatives used by Harris County during last fall’s general election — such as a day of 24-hour early voting and voting sites that allowed voters to cast ballots from their cars — that proved particularly popular among voters of color. But the legislation also blocks local efforts to expand voting options across the state and ultimately touches nearly the entire voting process from early voting to vote counting.

SB 7 has been at the legislative forefront as the 2021 Texas Legislature eagerly joined in Republican efforts across the nation to enact sweeping changes to voting laws in the name of “election integrity,” although there is little to no evidence of widespread fraud. Earlier in the legislative session, Abbott conceded at a related press conference that he was unaware of instances of fraud that had upended an election in 2020. And one of the state’s top election officials told House lawmakers at an early committee hearing that “Texas had an election that was smooth and secure.” [Jerri-Lynn here. My emphasis.]

The Biden administration is committed to challenging these state voting statutes, which will put Democrats onto the back foot for future elections. The issue will certainly end up before the Supreme Court, which will surely side with the states. When that happens, Democrats will be forced to embrace Court-packing with greater enthusiasm and the issue may very well emerge as a central issue in 2024.

So if these voting rights laws look like they’re hindering Democratic electoral prospects and with no relief available from Republican judicial nominees, Biden may be forced to consider court expansion initiatives.

Diversity and the Supreme Court

Yet even before these Court-packing issues become acute,  Washington whispers suggest Biden will soon have a Supreme Court seat to fill, as Justice Stephen Breyer – a Clinton appointee who’s also the Court’s oldest member – intends to retire. Biden ihas pledged  to nominate an African-American woman to the Court and Biden continues to ring changes on the standard identity politics in his other comments on judicial nominees.

For his predecessors, diversity along other lines hasn’t been a priority. Take law school, for example. Other than the newest justice, Amy Coney Barrett, who’s a graduate of the University of Notre Dame’s law school, all other Justices attended Harvard or Yale Law School.   As for legal professional background, those on the Court are drawn from a narrow universe – they’re all either former law professors, corporate attorneys, prosecutors, or bureaucrats.  No public defenders, for example. No public interest lawyers. No plaintiffs’ attorneys.

Biden has to date teed up 19 nominations for 78 vacant Article III  judgeships. These nominees also exhibit some diversity in professional background, with two nominees for appellate slots having experience as federal defenders. From the May 12 White House press release announcing the third wave of nominees:

President Biden has announced his intent to nominate three new Court of Appeals nominees and three new District Court nominees, who will bring deep credentials and qualifications to the federal bench, as well as career-long devotion to our Constitution and the rule of law. These individuals embody President Biden’s commitment to ensure that his judicial nominees represent not only the excellence but the diversity of our nation with respect to both personal and professional backgrounds.

The last decades have seen a pronounced rightward shift in the judiciary, including both Republican and Democratic judicial nominees alike. Biden has made some interesting legal appointments – the most notable to date being Lina Khan  as Federal Trade Commissioner. The current front-runner for any Supreme Court opening is federal district court judge and nominee for the U.S. Court of Appeals for the DC Circuit Ketanji Brown Jackson. She too is a Harvard Law graduate. I’ve yet to study her opinions, so I have no clue as to her judicial philosophy. Her professional background includes a clerkship for the justice she might replace, stints in Big Law, two years with the United States Sentencing Commission, and two years as a federal public defender.

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21 comments

  1. Glen

    Oh please, monkeys will fly out of my a$$ before Biden even puts “Supreme Court” and “packing” in the same sentence.

    Reply
    1. Hepativore

      “Nothing will fundamentally change,” right out of Biden’s mouth. Besides, packing the Supreme Court would mean taking time away from hair-sniffing and plus, his main purpose is that of a neoliberal figurehead installed by the DNC to continue playing the bait-and-switch game that the Democrats have done for decades in regards to all of his campaign promises.

      It looks like his plan for his presidency is to just coast on the momentum of his Executive Orders that he made during the first few weeks of his term while quietly bailing on any chance to do anything substantial. With luck, the Democrats can lose the midterms so Biden can have another excuse for his ineffectuality by blaming it on the machinations of the Republicans.

      Reply
    2. upstater

      I would LOVE to see staggered 8 or 10 year federal judicial term appointments. Stacking would become less of an issue.

      Having said that Biden is Swampus Creatursauras and we can expect less than zero given the 5 decade track record.

      Reply
  2. Carolinian

    As an alternative to court packing the Dems could adopt policies so popular that close, disputed elections and gridlock are no longer such problems. Just a thought.

    Turley says he’s all for a larger court but one accomplished gradually over years rather than as a partisan tactic. This would still, no doubt, face heavy Repub opposition.

    Reply
    1. Gareth

      In addition to picking popular policies, Democrats could also have the courage to pass legislation and to push through amendments rather than relying on the Supreme Court to serve as a cat’s paw. In order to avoid political consequences, they have relied on the court to achieve their political goals far too much since the 1980s. Now that strategy is unavailable for at least a few decades. Supreme Court rulings are a poor substitute for constitutional amendments and actual legislation. What would the DNC would do if someone proposed targeting something more than 51% of the vote? Oh that’s right, they would have a hissy fit and declare them persona non grata. Campaign consultants need to maximize profits, too, you know.

      Reply
  3. cocomaan

    As I said on NC someplace else, my guess is that this series of committees and subcommittees and sub sub committees will conclude their zoom meetings and announce their results if and only if the SCOTUS takes up an abortion bill (or some other hot button issue, but abortion would definitely light things up.)

    Biden can then use this study group as a way to pressure the SCOTUS to rule in favor of the abortion status quo. Will it work? Will the court be willing to be bullied? Hard to say. Clarence Thomas has been awfully vocal lately, so it will be interesting to see if they’re willing to let the executive branch’s bullshit committee have any power over them.

    Upshot is that Biden can make this study group spin like a top until he needs them for political expediency. If they don’t need to be deployed against an abortion decision, they’ll come up with some meaningless reform and call it a day, something like, “Judges should retire at some age that makes sense.”

    For now, gestures like forming a committee are enough to mollify his party, hence why he can just suggest legislation that has no chance of passing and be praised as the next FDR.

    Reply
  4. Tom Doak

    The timing seems geared more toward making the Supreme Court an issue for 2024 — give us a clear majority, and we’ll fix the Supreme Court.

    Yeah, sure.

    Or, maybe it’s their strategy for the mid-terms?

    Reply
    1. Yves Smith

      Late to this thread. I do not understand the Team Dem or Dem hive mind logic in not dropping this topic as toxic. Pelosi, who no matter what else you think of her, is cunning, signaled ASAP this was dead on arrival. She absolutely will not back it.

      This issue is not going to bring more Dems to the polls, but it sure as hell would rally Rs in the midterms, hence Pelosi signaling it’s a third rail issue.

      Reply
  5. Christopher Horne

    A curious thought…. What if Biden decided that there should be LESS
    judges on the Obscene Court? How would those politics shake out?

    Reply
    1. Gareth

      Barring impeachment and conviction, Supreme Court justices hold their positions for life, and nothing can change that. Any attempt to do so would be ruled unconstitutional by the Supreme Court. The last and only time Congress reduced the number of justices was in 1866, and they had to do it through attrition. So if Democrats want to cut the number of justices, they would deny Biden the ability to appoint new justices as current ones left the court. Breyer is likely the next to retire, so it would have the effect of making the court more conservative.

      Reply
  6. Duck1

    Just don’t see the political power to do it. Senate is 50/50. Biden is in a very weak position in terms of moving anything in Congress. Pelosi can be Nancy on the spot with her weak majority, but that doesn’t get anything through the Senate. Shumer may defend Israel but is not competent for much else.

    Reply
  7. The Rev Kev

    He won’t do it. You know he won’t. The Democrats have the House & the Senate at the moment. Well, kinda. But they are really not doing much with it and are cutting back anything that the Republicans frown on. If he stacked the Supreme Court, there would be impetus to actually do something – which is precisely why he won’t. You say that the Supreme Court skews right at the moment? Joe is OK with that as he skews extreme right and always has. Frankly, The Onion pretty much nailed it here-

    https://www.theonion.com/biden-concerned-ambitious-agenda-could-be-stalled-by-hi-1846958173

    Reply
  8. Bill Smith

    If he did expand the Court, what stops the other side to do it again the next time they are in power?

    Reply
  9. Mike

    I do enjoy that whenever Naked Capitalism uses a Betteridge headline they obey his Law!

    Jerri-Lynn pairing the right-wing voting restriction efforts with the overview of Biden’s nominees is a good framing of this issue. A focused, ideological battle vs. no real strategy.

    Reply
  10. Jack Parsons

    We don’t need a packed Supreme Court. We need to defund the Federal judiciary and force out all federal judges who can’t make a living on the side, then appoint a hundred lefties.

    This is the only plan that gives the US a future.

    Reply
    1. Gareth

      The Constitution explicitly forbids defunding the judiciary. Any district judge can declare that unconstitutional. Adding justices is the only way to alter the balance of the courts, and you can’t complain when the opposition starts doing that once you break that taboo.

      Reply
  11. Ashburn

    When it comes to the Supreme Court, Democrats need to understand “It’s the Senate, Stupid!”

    Unless and until the Dems come up with a strategy to win back Senate seats in rural America the judiciary will always be fraught with peril for any hope of a progressive court.

    Reply

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