Neera Kuckreja Sohoni
On February 5, 1937, President Franklin Roosevelt announced his plan to expand the Supreme Court to 15 judges. He was saved the infamy of actually implementing the plan because some members of the Court switched their support to enable a slim majority opinion upholding the constitutionality of presidential authority and of the laws whose legality the court had questioned.
The Biden administration has sought to do the same with some House Representatives announcing the crafting of a bill which, if passed, will expand the Court to 13 justices from the conventional nine.
Coming 84 years later, Biden seems committed to live up to his worthy predecessor’s record. Their deliberate effort to expand the court in order to make it pliable and more amenable to the ruling party’s agenda makes both presidents’ actions highly suspect and demoralizing. The latter because it implies that both the Constitution, and the foundational principle of US democracy – i.e. separation of powers – are no longer sacrosanct. Worse, American democracy in its genetic and inherited form is discardable.
Roosevelt enjoyed such a massive public mandate that he felt the Court and its judges must either fall in line with his policies or have their judicial interpretation and overruling power diluted. His peeve arose from his experience. During the previous two years, the court had struck down several key pieces of his progressive New Deal legislation on grounds that the laws delegated an unconstitutional measure of authority to the executive branch and to the federal government.
Democrats coincidentally feel similarly peeved with the Republicans’ refusal to allow Senate’s consideration of Obama’s judicial nominee to the court towards the end of the Obama presidency. Republican Senators then wrongfully claimed the high moral ground asserting that the right to fill a court vacancy should accrue to the incoming rather than the out-going president. Republicans added insult to injury when they brazenly went ahead to do exactly that and connived to hustle Justice Amy Barrett’s nomination and addition to the court at the tail end of Trump’s presidency.
Heady with his landslide reelection in 1936, Roosevelt had smugly decided he could not brook any opposition from judiciary’s mandarins. He therefore proposed retirement at full pay for all members of the court over 70, further providing that if a justice refused to retire, an “assistant” with “full voting rights” was to be appointed – presumably one committed to rubberstamp Roosevelt’s initiatives. This brazen effort to ensure a liberal majority court partial to the Roosevelt agenda enraged politicians of opposing leanings including some Democrats, and left many sections of the public disenchanted, leading critics to condemn his ‘court packing’ plan.
Biden’s executive order announced on April 9, 2021 laid the ground for his similarly scheming venture. The order sets up a Presidential Commission composed of not more than 36 members drawn from constitutional scholars, retired members of the Federal judiciary or familiar with it, tasked to examine the court’s functioning and recommend reforms. Seemingly benign, the Commission is the trojan horse to provide a rationale for the intended coup against the high court’s authority. With barely any diehard conservatives and non-Biden donors serving on it, the Commission’s findings are unlikely to be eclectic.
Rather than await the findings of this suspect almost entirely Democrat and liberal leaning Commission, some progressive Democrats in the House decided to jump the gun. Seizing the day (April 15, 2021), standing on the footsteps of the Supreme Court building, they announced the intended introduction of their bill in the House asking for 13 justices. The choice of that location alone can be perceived as intimidation of the court.
Neutralizing the court is one thing and vicious enough. Far more lethal is to neuter it. And Biden’s and Democrat’s plan to tamper with the court, especially without popular mandate, makes it autocratic and egregious. Whereas Roosevelt came in to his second term with a landslide victory, Biden is thinly supported with a barely noticeable majority in the House and a 50:50 Senate entirely dependent on the Vice-President’s assured casting vote. That reflects an equally divided nation. Yet Biden seems to act as though he is not merely riding the crest of a wave but has the entire ocean behind him.
The Democrats’ court packing game is being sequentially played on three fronts. First, Biden’s order unveils his intention to get an outside expert commission’s verdict on court expansion, knowing fully well that the composition of the commission guarantees the desired outcome, i.e., the court’s expansion. The Executive order is followed shortly by four Democrat Representatives publicly announcing the initiation by them of the court expansion bill, and laying bare Democrat grievances that necessitate an “unpacking” of the “Republican-packed” court. Disgusted with Trump and fearing the outcome of the conservative leaning court, they made sweeping unfounded allegations against the court, brazenly indicting the conservative justices currently serving on the court. That theatric announcement was quickly followed by Pelosi publicly asserting that she had no intention of bringing the bill to the floor for a vote, and would await the commission’s findings.
One can bet Pelosi will retract soon enough and go with the flow. Biden or Pelosi unfortunately follow a similar approach of claiming to do one thing but doing the opposite. Hence the skepticism they rightly spawn equally among independent observers, opponents, and supporters.
It is worth pondering why are democrats in such a hurry to pack the court and broadly, to seal all doors to democracy? From crafting, tabling or egregiously passing generous immigration and electoral bills that make voting open to all and sundry and not exclusively to citizens, or throw open doors to hordes of illegal immigrants – luring them to immigrate in return for bounties of free accommodation, healthcare, subsistence assistance, and unemployment compensation – democrats at state and federal levels are ensuring a gullible, grateful and guaranteed voter base not only in the immediate but also in the distant futures.
With thousands of immigrant children and youth and millions of adults welcomed by Biden to live, work and access public services freely without verification or law-abiding requirements, which immigrant for the rest of this century will dare to not vote for Democrats? And why would their children and grandchildren ever choose to deviate and leave the democrat tent?
We would be fools not to expect that well before the next mid-term elections, Democrats will have ensured that both, the mass of voters as well as the Supreme Court are in their pocket.
Ms. Sohoni is a freelance writer and published author.