Court Packing, Once Labeled a ‘Terrible Idea’ by President Biden, Is Having a Moment

As the dust clears on a Supreme Court term that left Democrats unhappy over everything from religious liberty to abortion to climate regulation, some of the most prominent names in the party are entertaining policy options that would hitherto have been unthinkable.The latest to call for radical change is Representative Adam Schiff, who has emerged as one of President Trump’s most strident critics, both during and after the 45th president’s time in office. Mr. Schiff was the manager of Mr. Trump’s first impeachment trial, and he sits on the January 6 committee. In that latter capacity, Mr. Schiff has been an aggressive voice in the effort to browbeat the Justice Department into charging Mr. Trump with federal crimes. He told PBS that “if there’s credible evidence that the president or anyone else has committed a crime, they should be investigating it.”Now, Mr. Schiff wants more judges on the Supreme Court. He tweeted that on Thursday, recounting a litany of “blows” that have ensued because “Mitch McConnell and Donald Trump stacked the court.” Now, Mr. Schiff writes, “it is time to unstack it- expand the court.”The Constitution does not specify the number of justices who sit on the Supreme Court, and Congress is empowered to alter that number, which has remained at nine since 1869. Now, there is pressure to add justices.Democrats calling for more justices hope that they can accomplish the expansion while the party is in control of the House, Senate, and White House, thus tilting the court in a leftward direction.Mr. Schiff is not alone in his demand. Senator Warren has opined: “I believe we need to get some confidence back in our court and that means we need more justices on the United States Supreme Court.” Congresswoman Alexandria Ocasio-Cortez has urged a broader reconsideration: “Not only should we look at expanding the Supreme Court, but I think we need to acknowledge that the Supreme Court of the United States has very few checks and balances.” Another lawmaker, Senator Markey, has asked “what other judicial outrage must we endure from the illegitimate, far-right majority on the Supreme Court before we act? Fight back and expand the Court now.” Last year, facing intense pressure from Democrats frustrated with the conservative ascendance at the court, President Biden appointed a commission to study Supreme Court reform. While refraining from making recommendations, that body did affirm congressional authority to expand the number of justices. For a cautionary note, though, the president could look to the fate of the court-packing scheme of the president whose portrait Mr. Biden hung in the most prominent place in the Oval Office.FDR, frustrated by a court that was stymying his New Deal, attempted in 1937 to pack the court. The Judicial Reform Bill of that year proposed adding a new justice for every sitting one over 70 years of age. It would have yielded six new justices.The plan was eventually defeated in the Senate, a decision that Mr. Biden in 1983 applauded, labeling the attempt to pack the court “a terrible, terrible mistake to make.” He went on to label the drive to alter the court by adding to its ranks “bonehead.” That appears to be a view that the president still holds, as the White House spokeswoman last week said in response to court packing queries: “That is something that the president does not agree with. That is not something that he wants to do.” Mr. Biden is capable of changing his position. Previously a staunch defender of the filibuster dating to his nearly four decades in the Senate, he now endorses bypassing it to codify abortion rights. He made that switch in reaction to what he labels on the part of the court “outrageous behavior.”

Court Packing, Once Labeled a ‘Terrible Idea’ by President Biden, Is Having a Moment

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