Liberals have pushed the idea as a response to Republicans gaming the Supreme Court nomination process in recent years, which has led to the most conservative Supreme Court we’ve seen in decades. When the idea gained steam during the 2020 presidential race, Biden declined to take a position on it but instead announced he would appoint a commission that would look into it and other such ideas — something widely interpreted as a punt in the issue.
As The Post’s Robert Barnes and Ann E. Marimow write, the commission cautioned that increasing the size of the court would be perceived as partisan maneuvering with significant consequences for the court and its future.
It would not only be perceived that way; it would be that way, and with massive untold consequences. Whatever one thinks of what Republicans have done in recent years — first by declining to even give President Barack Obama’s nomination of Merrick Garland a hearing by citing a supposed principle against confirmations in a presidential-election year, and then abandoning that principle to confirm Amy Coney Barrett last year — packing the court would indeed set the court (which has had no more than nine justices for 150 years) on a path of no return.
The report says this would threaten the court’s “long-term legitimacy or otherwise undermine its role in our legal system” by creating a system in which the court is repeatedly expanded to suit political purposes. One estimate cites as many as 29 justices being on the court in the next 50 years.
This was always something of a pie-in-the-sky idea. Not only is the proposal a drastic one, but Democrats have floated it with virtually no ability to actually make it a reality. They began talking about it when they were in the minority in the Senate and didn’t even have the presidency; today they have the barest of majorities in the Senate — 50 seats plus the vice president — and can’t even get all their senators to agree on a major infrastructure package.
But a vocal portion of the base pushed it hard during the 2020 presidential race, and Biden did what you do when you’re uncomfortable with an idea but don’t want to totally and immediately disappoint a core constituency: say you’ll appoint a blue-ribbon commission to look into it.
Which is pretty much what court-packing advocates now say this amounted to.
“This was not even close to being worth the wait,” said Brian Fallon, head of the pro-court-packing group Demand Justice. He added: “From the beginning, the purpose of this Commission was not to meaningfully confront the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it fights other legislative battles.”
This is 100 percent true. And buy time it did. Here’s a look at Google search trends for court-packing over time. Note the big surge after Justice Ruth Bader Ginsburg’s death in September 2020 and then the modest increase when Biden followed through on his delay-tactic campaign promise by appointing the commission in April.
What’s particularly striking here: We didn’t even see much of an increase in interest even after the newly more-conservative Supreme Court last month took a major step toward potentially rolling back abortion rights.
But there’s at least something to be said for this whole effort potentially moving the Overton window, a term for the range of politically acceptable ideas. Sometimes pushing extreme measures can be useful politically because it can highlight more-practical ideas that suddenly seem like a valid compromise.
Such could be the case with less-drastic ideas examined by the commission, most notably creating term limits for Supreme Court justices, which a subcommittee report said “appear to enjoy the most widespread and bipartisan support,” as well as allowing people to listen to oral arguments in real time.
Neither of these, of course, addresses what court-packing advocates were really out for, which is a quick fix for the events of the past few years. Term limits of 18 years would reduce the swings on the court and make it so the balance of power is less reliant upon when justices just so happen to retire or die, but they would also take a long time to truly have that impact. They are also very difficult to institute, given they would be likely to require a constitutional amendment, which means two-thirds of both the House and Senate and three-fourths of states. (Are Republicans really going to sign off on such a thing when they’ve gamed the current system much better than Democrats have? Of course not.)
In other words, we’re at about where we were and were always going to be with all of this, which is nothing truly happening. The process works.