Democrats are working to follow through on their 2020 campaign promise to expand the Supreme Court, something liberal law professor Jonathan Turley believes is a dangerous precedent, especially in our “age of rage.”
Although Turley called to expand the Court to as many as 17 or 19 members over the last 20 years, he says there’s a stark difference between “reforming” and “packing” the Court — the biggest being how quickly the change occurs.
“Over 20 years ago, I recommended the expansion of the Court to 17 or 19 members. However, that recommendation would occur over many years and would not give advocates the short-term majority that they are seeking. That is the difference between reforming and packing the Court,” the professor wrote on his website. “Even a gradual increase would also face considerable opposition in the Senate, particularly out of a lack of trust that a later majority would add a couple of justices and then renege on continued additions to continue to control the majority of the Court.”
Despite polls indicating that the majority of Americans disagree with packing the Court, Democrats are pushing forward because they “seem to think the Supreme Court must be canceled for its failure to yield to the demands of our age of rage,” Turley explained.
He cited Justice Stephen Breyer as a prime example. Breyer, who is arguably one of the most consistently liberal justices on the Court, was shunned for telling Democrats to “think long and hard” before making such a drastic change.
“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,” Breyer said.
Even though Breyer consistently sides with the Left, many are now calling for his resignation because he disagrees with their Court packing agenda. While the Court has remained largely immune from over politicization in the past, the latest attempts to “pack” it have caused newfound polarization. Such concerns are valid when considering those among the commission studying potential Court reforms.
“The commission is an ominous sign that Biden may be offering up the last institution immune from our impulsive politics. Its composition also seems to confirm the worst expectations. Indeed, it is a lesson in how to pack a body. The group is technically bipartisan but is far from balanced,” Turley wrote in an opinion piece for The Hill. “Only a handful of the 36 members are considered center-to-right academics. (Even that is still a better showing of intellectual diversity than most of the faculties of the represented schools, which have few if any conservative or libertarian faculty members.) Liberals make up the vast majority on the commission, and some have been outspoken critics of Republicans and the conservative Supreme Court majority.”
Turley listed a handful of commission members who he believes will be far from objective. The list includes University of Michigan Professor Kate Andrias and Yale University Professor Cristina Rodriguez, both of whom rejected Justice Brett Kavanaugh’s confirmation.
It seems that Harvard University Professor Laurence Tribe is also problematic. Turley cited a handful of examples, such as Tribe’s labeling of President Donald Trump as a “terrorist,” his various attacks on Senate Minority Leader Mitch McConnell, and statements regarding Attorney General William Barr’s Catholic faith.
“Tribe has not been subtle about his sudden interest in court packing. After the election he declared, ‘The time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power over the safeguarding of our American democracy and the protection of the most vulnerable who are among us,'” Turley wrote.
Another commission member is Harvard University Professor Michael Klarman, who talked about court packing back in 2016 when the GOP refused to confirm Merrick Garland. According to Klarman, Democrats would be able to ensure Republicans “will never win another election” by packing the court with a liberal majority, Turley warned.
President Barack Obama’s former White House Counsel, Bob Bauer, also sits on the commission.
“The only hope is that this commission is so lopsided that it is clearly not intended to be a credible basis for a court packing proposal. While the group has many respected and thoughtful academics, its composition is unlikely to sway many conservatives or even some moderates,” he said. “… The hope is that [Biden] does not have the courage to simply repeat his past view that court packing remains a ‘boneheaded’ idea but that he can assemble an overwhelmingly liberal commission to effectively kill the scheme. After all, 180 days is not much time to reinvent the Supreme Court, but it is just enough time to give the pretense of an effort to do so. Unfortunately, that is the closest we get to principled government today. But in this instance, the short lifespan just may be a ‘hitch in time’ that saves nine.”
Though Democrats introduced legislation in both chambers to pack the Supreme Court with four new justices, Speaker Nancy Pelosi (D-CA), said she has “no plans” to bring to the bill to the floor for a vote, The Hill reported. She did, however, say it was “not out of the question.” For the time being, it seems that leadership is more focused on other legislation, such as infrastructure.
“I don’t know if that’s a good idea or a bad idea. I think it’s an idea that should be considered and I think the president’s taking the right approach to have a commission to study such a thing. It’s a big step,” she said.
Beth Baumann is a Political Reporter and Editor at The Daily Wire. Follow her on Twitter @eb454.