Home/The State of the Union/The Quiet Death of Court Packing

The Quiet Death of Court Packing

Four months ago, it was all the rage on the left. Today, it's being studied by a commission, meaning slowly put out to pasture.

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on October 14, 2020 in Washington, DC. (Photo by Erin Schaff-Pool/Getty Images)

How quickly the news cycle churns. Four months ago, Ruth Bader Ginsburg had just passed, President Donald Trump was angling to replace her with Amy Coney Barrett, and liberal pundits who had spent the past four years warning about norms violations were sighing and saying actually the only way forward was for Joe Biden to pack the Supreme Court.

In response, Biden pledged to appoint a commission to explore the issue—and then promptly forgot all about it. Bloomberg reports today on the expectations for that neglected group:

Allowing cameras in their courtroom, establishing term limits for Supreme Court justices, or slowly adding lower court judges are ways a bipartisan commission appointed by President Joe Biden could recommend reshaping the judiciary.

Those potentially significant changes would fall short of adding new members to the high court, the idea embraced by progressives to overhaul the judiciary in a hurry.

Radical change was never the point of the commission, which Biden proposed during his presidential campaign as he faced progressive pressure to endorse court packing as a way to thwart the Supreme Court conservative majority that expanded under Donald Trump.

In most places, if you want to kill something, you bring a gun; in Washington, you appoint a bipartisan commission.

There are two reasons, I think, why court packing is no longer in vogue. The first is that the judiciary has acquitted itself, in the eyes of Democrats anyway, by swatting down Donald Trump’s voter fraud claims. That included the Supreme Court, which decided 7-2 not to hear a case that sought to throw out election results in four states, with Barrett joining the majority. The second reason is that the last thing Biden wants right now is to spend all his political capital waging intra-governmental warfare. A president’s first 100 days are about soaring visions, unaffordable spending packages, top-dollar payoffs to constituencies, appointments of loathsome rich guys to ambassadorships in European micro-states; what they’re not about is screwing around with the most trusted branch of the federal government.

Hence the commission. Court packing is dead, at least for now. Expect it to rise again the minute the justices rule against something progressives like.

about the author

Matt Purple is a senior editor at The American Conservative.

leave a comment

Latest Articles