If former Vice President Joe Biden becomes the 46th President of the United States – and if Democrats take control of the Senate – the confirmation of Judge Amy Coney Barrett may be a short-lived victory for the originalists on the Supreme Court.
Democrats are proposing to pack the Court with more justices. Yes, the number of justices is up to Congress and the President. And yes, there were changes in the number in the earliest days of the Republic. But the number settled in at nine in 1869 – and has been there ever since. President Franklin Roosevelt made the only attempt at packing the Court since then – and he was even rebuffed by the Congress he ostensibly controlled.
We have to keep in mind that Democrats – as the party of a big powerful central government – are never timid about extending the authoritarian concepts of governance. So, what can happen in a future Democrat administration – including control of the Congress?
The first and most obvious action would be to increase the size of the Supreme Court to 11, 13 or even 15 members. That is not a wild theory. A number of the most powerful Democrats in America have called for such action in retaliation for the seating of Barrett. Hardliners like Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi have said that court packing is not off the table in a Biden administration – and these are the folks who would be leading the Congress that would have to pass the legislation.
Biden had been in staunch opposition to the idea in the past — calling it “boneheaded.” Currently, he will not repeat his opposition. He now states that he will offer up his opinion after he sees if Barrett is seated or not. Since Barrett is all but certain to be confirmed, Biden’s delay in restating his earlier opposition means that he is now open to the idea – and his hanging it on the outcome of the Senate confirmation hearing is political bs.
Biden promises to state his position prior to the election, but I would not bet on that. He has turned politics into a game of dodgeball. And even if he says he is opposed during the campaign, that does not mean he will not cave to his left-wing base after getting elected. Campaign promises are about as durable as the promise to respect you in the morning.
The idea of packing the court is not the only threat to a conservative majority. It is likely that the next President will have at least one appointment to the high court – and potentially more if there are two terms.
Justice Stephen Breyer is currently 82 years old and not in the best of health. He could survive another 8 years, but that is very unlikely based on actuary tables. He may also choose to resign at some point.
Replacing Breyer would not be a net gain for the liberal faction since Biden would undoubtedly replace Breyer with another – much younger – liberal. Biden could re-nominate Judge Merrick Garland, but that would bring opposition from the newly empowered left-wing of the Democratic Party.
Garland would be considered a bit too moderate. You have to remember that President Obama selected Garland in the hope of getting him past a Republican Senate. Garland would probably get a number of Republican votes. He has bipartisan respect.
The next oldest justice is Clarence Thomas at 72. At his age, he could likely outlive a two-term Democrat President – but at that age anything can happen. We saw that with Justice Antonin Scalia.
Thomas has been hinting at retirement in recent years. Whether having a Democrat in the White House would change his thinking is uncertain. Of course, Biden would replace Thomas with a liberal – and restore a 5/4 balance to the Court – still leaning slighting to the right.
But, if the Democrats succeed in packing the Supreme Court, the liberal activist will then control the Court for generations. Two more liberal justices would make it a 6-to-5 left-leaning Court. Add four and you have an 8-to-5 Court. And 6 more justices would get you an 11-to-5 Court.
Packing the Supreme Court is the road to Hell for the American Democracy. Should Republicans again gain control of the White House and the Senate, they would be within their rights – legally, politically and morally – to create a 21-member Court – or 25.
Packing the Supreme Court is a VERY bad and dangerous idea. Only the power-grabbing Democratic Party could even conceive of such a body blow to the Republic. The very idea that Democrat leaders would even consider such a brutally political retaliation should be enough to vote against them – and not give them even the opportunity to pursue their terrible scheme. Conversely, giving them control of the White House and the Senate would provide them with a sense of license.
So, there ‘tis.