“Breaking News: President Biden will create a panel to study expanding the Supreme Court in an effort to balance the conservative majority created by Donald Trump.”
That’s the way the New York Times – the so-called paper of record that hasn’t endorsed a Republican presidential candidate in 65 years – explained a commission to radically change the high court in what could ultimately go down as one of the most radical acts carried out by a U.S. president.
Yep — it’s “an effort to balance the conservative majority created by Donald Trump.” That’s just about the best unintentional comedy you’ll see out there. And ask yourself this: If the roles were reversed and, say, a President Trump ordered a commission through executive order to study expanding the Supreme Court in the name of balance, would the Times frame it the same way?
Rhetorical question.
Not since before the 78-year-old Biden was born has any president even considered adding seats to the Supreme Court. In 1937, President Franklin D. Roosevelt wanted to add six SCOTUS justices, but was thwarted by an overwhelmingly Democratically controlled Congress, which otherwise had passed anything FDR wanted during his first term. Result: Nine justices remained the number and has to this day.
But 2021 ain’t 1937. Hell, it ain’t even 2009, the last full year Democrats controlled the House and the Senate. If Biden wants to go ahead and turn the Supreme Court into a 15-judge court, House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) will be happy to support the effort, all while citing racism as a primary reason to stave off any criticism from the right or any objective members of the media.
“President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court. It was totally within his right to do that—he violated no law, he was legalistically absolutely correct. But it was a bonehead idea. 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 in my view—the most significant body in this country, the Supreme Court of the United States of America.”
That’s Sen. Joe Biden back in 1983 calling court packing “a terrible, terrible mistake” and “boneheaded.” But as we’ve seen time and again, pre-president Biden’s words and President Biden’s actions are in constant contradiction.
As a candidate, Biden argued that a president using executive orders instead of going through Congress makes one a “dictator.” President Biden goes on to sign 38 executive orders in less than three months, more than any of his predecessors by a country mile.
Sen. Biden also argued in 2005 that ending the filibuster “would eviscerate the Senate and turn it into the House of Representatives.”
“It is not only a bad idea, it upsets the constitutional design and it disservices the country,” Biden said in a speech he deemed one of the most important of his career. “No longer would the Senate be that ‘different kind of legislative body’ that the Founders intended. No longer would the Senate be the ‘saucer’ to cool the passions of the immediate majority.”
President Biden now calls the filibuster a relic of the Jim Crow era.
So, how do current Supreme Court justices feel about expanding the Supreme Court in an effort to “balance” it?
“Proposals have been recently made to increase the number of Supreme Court justices. I’m sure that others will discuss related political arguments,” liberal justice Stephen Breyer said during a speech at Harvard Law School last week. “This lecture reflects my own effort to be certain that those who are going to debate these questions … also consider an important institutional point. Consider it. Namely, how would court packing reflect and affect the rule of law itself?”
“I hope and expect that the court will retain its authority … which was hard won. But that authority, like the rule of law, depends on trust. A trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”
This sentiment is not sitting well with some on the left, who are calling for Breyer to retire.
“It’s hard to pick which words in that statement I find the most naive, misguided and self-serving,” MSNBC host Mehdi Hasan wrote regarding Breyer’s speech. “[W]here on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping?”
Packing the court is also not something most American voters favor, not even close. According to a New York Times/Siena College poll right before Election Day, 58 percent said Democrats should not increase the size of the bench, while just 31 percent favored it.
No matter: The commission will proceed for the next 180 days to debate an outcome likely already decided. Included on the commission is frequent MSNBC guest Laurence Tribe, who once declared that Donald Trump and Adolf Hitler have “physical and behavioral resemblances” while comparing Trump to a “terrorist.”
The person who will report on the commission’s findings is Kate Ariad, who was part of a cabal of 500 law professors demanding the rejection of Brett Kavanaugh during his Supreme Court confirmation hearings. The commission chairs consist of Cristina Rodriguez (Obama Justice Department) and Bob Bauer (Obama White House counsel).
Is there any doubt what this sham of a commission is going to conclude?
Of course, like the New York Times, most of the media will continue to report that the panel is bipartisan, just like the president it serves — all while the Supreme Court is officially weaponized and changed forever.
Joe Concha is a media and politics columnist for The Hill.