Court Packing is Unwise and Unwarranted

By Royal Alexander

The U.S. Supreme Court has forgotten that it is emphatically its duty and province to say what the law is, even in the face of intimidation. (Marbury v. Madison)

Intimidation.  There is no other logical explanation for it.  President Biden recently announced his Presidential Commission on the Supreme Court which could more accurately be called the “Latest Liberal Effort to Pack the Court with Left Wing Judges and Justices.”  [The effort to pack or alter the Court when considered alongside discussions about adding two Democrat states and four additional Senators as well as repealing the Electoral College legislatively and ending the legislative filibuster all speak to the concerted effort of the fascist Left not to engage in political debate but to stifle it and ultimately criminalize political differences.] 

Supporters and allies of President Theodore (Teddy) Roosevelt in 1906 and in 1912 and President Franklin D. Roosevelt in 1937 threatened to pack, alter, or otherwise undermine the Court.  The interesting thing is that liberals have never had to make good on these threats because the Supreme Court has allowed itself to be threatened and intimidated into ruling in the way the political Left wanted it to.

To his eternal credit, Supreme Court Justice Stephen Breyer recently stated that packing the Court would undermine and harm the public’s perception of the Court and the rule of law.  “Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”

These attacks on the Court are both tragic and a perversion of what our Framers intended as the role of the Supreme Court in our Separation of Powers.  There is nothing more critical to the preservation of our constitutional form of government than the abiding presence of a fair and impartial judiciary.  Nothing.  If a party loses in court, they may be disappointed, but they will accept the results if they believe they had a fair trial and “their day in court.”

That is why it is poisonous to our democratic form of government to do what the national Left is trying to do to our Supreme Court in order to advance a liberal agenda it most likely cannot advance in the appropriate and legal way—through legislation in Congress.  It is also corrosive to the trust Americans must have in the judicial system to create the impression that the courts are nothing more than a third political branch.  

As such, it is a complete dereliction of the Supreme Court to allow itself to be forced into the position that it is making policy and serving as a “Super Legislature.”  That is fundamentally not its role. 

However, even if the Court could somehow “save” itself as an institution by caving in to political pressure, to what end would it do so?  It would forever be viewed as weak, cowardly, and untrustworthy.  It would certainly no longer hold its honorable and exalted place as one-third of our constitutional system of government.  In fact, the very reason the Framers provided federal judges with life tenure and undiminished salary was to remove and insulate them from politics and political pressure.  

Well, turnabout is fair play.  If Democrats attempt to pack the Court with new justices, the Republican Party can always limit or strip the Supreme Court of its jurisdiction to hear appellate (appeals) cases.  This is because the Constitution clearly affords the Congress this power under Article III, Section 2. One way to begin this would be, for example, to limit all cases seeking to “find” new substantive due process rights in the Constitution as the Court did, unconstitutionally, in Roe v. Wade.   Congress could also withdraw jurisdiction from the Court and prohibit it from hearing cases involving issues such as, for example, immigration, a right to die, a guaranteed basic income and congressional redistricting.  By doing so, Congress would simply be limiting the Supreme Court to its express, original, and traditional role. 

The Supreme Court must be viewed as—and truly serve as—a fair, impartial and neutral arbiter of law or it will be viewed as illegitimate.  Fearlessly reasserting its independence is the only way the Court can preserve its legitimacy and discharge its constitutional duty.  It must do so, or the delicate balance maintained by our system of checks and balances will be lost and the belief in America as a free and just society, imperiled.