AMAC Exclusive – By Seamus Brennan
The Supreme Court has not lacked media attention over the past few months, from the next Dobbs v. Jackson Women’s Health Organization abortion decision, the retirement of Judge Stephen Breyer, the imminent confirmation of Judge Ketanji Brown Jackson. But amid the media frenzy surrounding the upcoming cases, one major development regarding the future of the court itself has been oddly undercovered: namely, an acceleration of ongoing plans by Democrats to staff the court with justices from additional left.
Few Americans were even aware of the release of the report of President Joe Biden’s Commission on the Supreme Court last December, as Democrats and brokerage supporters no doubt wanted. The handful of outlets that did cover the report, however, did so in a way that deflected or outright ignored its more sweeping findings and recommendations. NPRfor example, wrote that the report “avoids taking a position”. CBS News Similarly claims that the Commission “has refrained from recommending structural changes to the Supreme Court” – describing the report as a series of non-binding conclusions that pose no threat to the federal justice system. Even the report itself asserts that it does not “claim to resolve any of the [the] differences” between the members of the Commission concerning the proposals for the reform of the Court.
Yet the content of the report – and indeed the very existence of the Commission – suggests that this danger is very real. Although the report avoids explicit recommendations regarding the composition of the Court, it is replete with terms, analyzes and “arguments” that are almost impossible to interpret other than to lay the groundwork for an expansion of the Court at some point in the near future. . As Conservative lawyer Ian Huyett wrote for The American Spiritthe Biden Commission stands “under a false veneer of detached scholarship” that could very easily lead to a progressive “totalitarian regime” that would completely undermine the rule of law.
Among the few clear conclusions reached by the Commission was that its members disagreed “on whether the addition of judges to the Supreme Court right now would be wise” (emphasis added). In particular, the Commission has made do not pass judgment on whether or not adding judges would be “wise” more generally – instead, their conclusions only apply to “this moment in time”. By limiting the scope of the Commission’s decision to “this moment”, the report intentionally leaves the door open to the Court’s frenzy in the future, whenever the Commission so decides. East actually “wise”. As Huyett observes, this statement is “a meaningless disagreement ostensibly presented to lend legitimacy to the Commission’s findings.”
“By characterizing Court-packing as – at worst – the violation of a mere ‘norm’,” he continues, “the Commission has attempted to ensure that any future debate on Court-packing will begin with the Democrats on the heights .”
The report also makes several misinterpretations of previous Supreme Court changes, including the 1807 and 1837 extensions to the Court’s seat count. Although these changes were made almost entirely for procedural reasons (largely in response to the growing number of circuits and other provincial concerns), the Commission nevertheless classified these reforms as stemming from “political concerns” without taking account of the historical circumstances most responsible for increasing the number of seats on the Court.
The report also misleadingly quotes figures involved in the courtroom debates of the 1950s — apparently to exaggerate their support for expanding the federal bench to nine seats, even when it’s clear they didn’t. (Notably, the report portrays the motives of Senator John Marshall Butler, who introduced legislation to permanently maintain the number of Supreme Court justices at nine in 1953, as favoring a “broad formal power to extend or reduce the Supreme Court”). This misleading play on words once again calls into question the Commission’s motivations, transparency and supposed lack of “position”.
The Commission’s thinly veiled ulterior motive is a continuation of a long-established pattern among Biden and other top Democrats of downplaying the left’s quest to fill the Supreme Court with progressive ideologues, even though their true intentions are painfully clear to the American people.
Biden himself infamously avoided the question throughout his 2020 campaign, affirming that “you will know my opinion on brokerage when the election is over”. Then-candidate Kamala Harris similarly refuse to weigh in on the issue during the 2020 vice presidential debate. Instead, former Vice President Mike Pence stated the obvious: “If you haven’t figured it out yet,” he said. said, “the straight answer is that they’re going to pack the Supreme Court.”
Conservatives should not be fooled by the evasive language of the Commission’s report. Instead, they should see the report for what it is: an effort to normalize the practice of court-packing in the eyes of Americans as well as an attempt to validate future efforts to expand the Supreme Court by a Democratic president. .
For anyone who cares about an independent judiciary, the separation of powers, and America’s constitutional order, nothing could be more ominous.
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