Legal Column: Will Biden Pack The Court?

By Adam Skrzecz, Law Editor

This article was originally featured in our special election 2020 magazine, (p.7) released 16 November 2020, which you can view here.

Two Giants Now Gone. (Photo by Alex Wong/Getty Images)

Since President Trump’s nomination of Judge Amy Coney Barrett to the United States Supreme Court, the nation has watched the President’s opposing party go to great lengths in marshalling all the “arrows in their quiver” to respond. In the lead-up to and since Justice Barrett’s swearing-in ceremony, both Senate and House Democrats have been open about their intent to nullify the effect on the Court Justice Barrett may have if things “don’t go their way.” Here are three attainable ways they could alter the most sacred of our nation’s courtrooms:

Term Limits

Article III, Section I of the United States Constitution provides that federal judges “shall hold their Offices during good Behavior.” Translated from its 18th Century vernacular, this provision allows federal judges, at all levels, to hold their posts for life or until they choose to retire. 

Hence, to impose a “term limit” on federal judges would require a Constitutional amendment. While difficult to achieve, the idea itself is not a new one. Several state judiciaries (including in North Carolina) have a mandatory retirement age for judges, and there are legitimate pros and cons to having a limit for judges who can (currently) only be removed by impeachment, death, and voluntary retirement. However, the life term implicates and perpetuates crucially important constitutional practices and doctrines (discussed later in this article). 

Jurisdiction Stripping 

Contrary to the belief of some, the Supreme Court is the only judicial entity whose existence is Constitutionally mandated. Art. III, Sec. I also provides that it is Congress who “may from time to time ordain and establish … inferior Courts.” What is more surprising to those unfamiliar with the inner procedural workings of the courts is that, in the same way that Congress can add additional courts to those in described in the Constitution, it can also add – or take away – a court’s ability to hear certain kinds of cases, called “stripping the court of jurisdiction.” 

Many people correctly associate “jurisdiction” with physicals boundaries, spaces, and territories. But it also applies to subject matter (creatively termed “subject matter jurisdiction”), or the types of cases and controversies the court can referee. Courts must have both “personal” (territory-based) and “subject matter” jurisdiction before it can hear a case. For areas of subject matter not prescribed in the Constitution, it is for Congress to create jurisdiction for courts to extend their reach to those collections of issues.

Thus, in theory, a Congress with both houses controlled by Democrats could pass legislation to “strip” certain areas of subject matter from the Court’s jurisdiction. Or rather than passing specific legislation to strip jurisdiction broadly, they could pass legislation on certain subjects in which they include provisions blocking it from any meaningful review by an Article III federal court, unless that legislation clearly involves serious constitutional questions.

“Court Packing” 

“Court Packing” is probably the most publicized of the Democrats’ plans to alter the Court if the Republicans are able to confirm Judge Barrett. If for no other reason, it is arguably the most publicized because top-of-the-ticket candidates often (very obviously) dodge the question whether they would in fact “pack the court” if elected. Eventually, however, Candidate Joe Biden finally admitted that whether he would pack the court would effectively “depend on how [Republicans] handled Barrett’s appointment.”

But what does this actually mean? Lucky for us, a President Biden would not be the first Democrat to attempt the feat of bending the Court to his will through the jamming in of justices, nor is it the first time that this idea has gone over very, very poorly. 

After many of his Great Depression recovery plans suffered defeat at the Supreme Court, President Franklin Roosevelt designed and introduced the Judicial Procedures Reform Bill of 1937. Chiefly, the bill would have given FDR the ability to appoint one Supreme Court Justice for every sitting justice over the age of 70 years and 6 months who refused to retire. If the bill had passed at the time, Roosevelt would have instantly made himself eligible to appoint another 6 justices, bringing the Court’s total to 15. The most recent law on the matter at the time was Congress’ Judiciary Act of 1869, in which the number of justices was fixed at nine. However, the Constitution does not specify a number of justices, meaning it would only take Congressional action (signed by the President) to approve the change. 

Contrary to the support received for his New Deal proposals, Roosevelt’s plan ultimately (and severely) lacked the public and Congressional support it needed. Moreover, one of the Justices most constitutionally opposed to many of FDR’s policies began switching his votes on various issues in the middle of the public discourse, prompting many to think that the Court began agreeing with Roosevelt to save its own skin (dubbed by many the “switch in time that saved nine”). This fiasco reignited public sentiments that the Court ought to structurally be held steady and free from political pressure to bend to popular will. 

Though he hasn’t elaborated what form it would take, Candidate Biden has consistently revealed himself to be very much in favor of taking another crack at court packing because of the confirmation of Judge Barrett to the bench. He knows his core progressive base would likely support it, but it is too unpopular with everyone else, hence his refusal declare support until effectively after the election. But contrary to his own (quite dangerous) comments that voters “don’t deserve” to know his stance on court packing, here’s just a few reasons why they do.

The Supreme Court protects invaluable counter-majoritarian interests.

Put bluntly, the Court prevents tyranny. After confirmation, a Justice’s only allegiance is to the Constitution. Period. They serve life terms, are unaccountable to the people, and free from political pressure – for a reason. The Court gives the Constitution meaning by applying it to the cases which arise before it, and that meaning should be unaffected by temporary popular hysterics. 

Court packing is overly political. 

It appears that the only time politicians (and interestingly “progressives”) in our history have made a serious push to pack the Court is when it stands in their way of a policy objective. This mentality – that “we” (in practice meaning the elite lawmakers) can and should alter the judiciary itself in order to push policy objectives – discounts the intelligence of the American people, who have seen right through it. Every time. 

Governance is a two-way street. 

To paraphrase the song: anything the D’s can do, the R’s can do better. Every time one party alters our constitutional infrastructure for the sake of making a point, it gives the opposing party license to do the same. You may now throw stability out the window. 

All in all, this is just the tip of the iceberg for why elections matter. A Supreme Court envisioned by the Framers and as conceived in the Constitution is crucial to our Republic’s survival. An independent judiciary, free from structural changes conditioned on the appeasement of political leaders, is essential to the preservation of our freedom and of the pre-political rights the Framers sought to protect. 

And, not that I would pretend to know better than the American voter, it seems clear to me that a candidate who won’t tell you whether he plans to bend the law to his politics – until after you vote for him – isn’t very interested in preserving your pithy “liberty.” 

Adam Skrzecz is a Carolina Review legal columnist, studying at UNC Law class of 2022. From Greensboro, NC, he is a fellow at the NC Legal Chamber Institute and the Founder and President of the Conservation and Agricultural Law Federation. (CALF)

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