There is fury on the right over President Biden’s new commission to study reform of the federal judiciary, including expansion of the nine-member Supreme Court, a.k.a. “court-packing.”
Still stewing about McConnell’s refusal to abet his challenge to the 2020 election results, and about the senator’s denunciation of the Jan. 6 mob attack on Congress, former president Donald Trump said the real court-packing problem is that McConnell is “helpless” to stop it.
What an overreaction. Yes, some on the Democratic left would love to add new justices, negating the current 6-to-3 conservative majority.
That’s understandable, since this lopsided lineup is partly a result of McConnell’s dubious refusal to consider President Barack Obama’s court nominee in 2016. McConnell said the Republican Senate could not act on an opposite-party president’s choice before the November election — though he expedited confirmation of Trump’s choice in the final days of the 2020 campaign.
But a court-expansion law would have to pass the Senate, highly improbable unless Democrats abolish the filibuster — and Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) firmly oppose that.
Given these realities, plus Biden’s own expressed reluctance about court-packing, the president’s call for further study looks like face-saving paralysis-by-analysis, not capitulation to the left.
Instructed to produce a report within 180 days of its first hearing, the commission probably won’t weigh in until almost 2022, an election year in which major legislation would be hard to pass even without the filibuster.
Progressives are certainly not acting like winners. To the contrary, they’re annoyed at one of their own — Justice Stephen G. Breyer — who further weakened the court-packing cause by criticizing it.
Breyer used an April 6 Harvard Law School-sponsored lecture not to condemn the GOP manipulations that produced the court’s current lineup, but to defend his colleagues, and the institution, from accusations of politicization. He noted several cases in which majorities including conservative justices had ruled contrary to conservative goals.
The Supreme Court remains an independent legal institution, Breyer argued, and partisan court-packing would diminish, not restore, public confidence in it — and in “the rule of law itself.”
Demand Justice, a progressive judicial-nominations lobby, responded by amplifying its calls on Breyer — at 82, the oldest justice — to step down while a Democratic president and Senate can replace him. The group hired a truck to wheel past the Supreme Court building carrying a “Breyer, Retire” billboard.
No matter that Breyer had a point. He wasn’t arguing that justices are completely free of politics — defined either as partisan affiliation or personal ideology. He was arguing that politics does not trump legal principle in the near-automatic way that critics assert.
Breyer has been on the court for 27 years; that alone is a reason to take his assessment of how it actually works seriously.
Ordinary people certainly seem to agree with him, and not with the left’s court-packers — or, for that matter, with right-wing critics of Chief Justice John G. Roberts Jr., whose occasional departures from GOP orthodoxy have earned him conservative hostility similar to what Breyer is getting from progressives.
As of mid-July 2020, 58 percent of Americans approved of the court’s job performance, according to a Gallup poll. Majorities approved of the court’s rulings in key cases of its 2019-2020 term, according to the New York Times.
A December YouGov poll, after Trump-appointed Justice Amy Coney Barrett had replaced the late liberal icon Ruth Bader Ginsburg, also produced a net favorable rating for the court, though GOP voters had markedly soured on it, probably because it rebuffed Trump’s spurious election lawsuits.
Demand Justice has a point, too; some aging justices have timed retirement to enable a like-minded president to name their successors. Most recently, Reagan appointee Anthony M. Kennedy gave way to Trump appointee Brett M. Kavanaugh in 2018.
Conversely, liberals rue Ginsburg’s decision not to leave under Obama, given that she subsequently passed away during Trump’s term.
Breyer knows the history. It would be no surprise if he stepped down after the court’s current term; there was a valedictory quality to his Harvard speech, which reflected, he said, “considered views” distilled from a lifetime as a law teacher, practitioner and judge.
Nor would it be a surprise if he stays. Heavy-handed demands for this genial but proud, and proudly independent, jurist to retire could even backfire, as did a back-channel effort to nudge him out during the Obama years, according to the Times.
What McConnell, Trump and Demand Justice have in common is an interest in agitating their respective political bases, the better to raise money from them, perhaps.
Breyer’s mistake, if any, was to assume he might be addressing a political class still amenable to good-faith persuasion, and not in the grip of mutually reinforcing negative partisanship.
Read more from Charles Lane’s archive, follow him on Twitter or subscribe to his updates on Facebook.
Read more:
