President Biden’s endorsement of term limits for Supreme Court justices would surprise a certain senator, who in 1983 called court-packing a “bonehead idea.” President Franklin Roosevelt’s attempt to pack the court in 1937, that same senator added, was a “terrible, terrible mistake” that “put in question for an entire decade the independence” of the Supreme Court.
The senator in question was of course Joe Biden. And he was right.
Increasing the number of justices, set at nine in 1869, has nothing to do with the Supreme Court’s capacity to do its work. Since every justice handles every case on the court’s docket, adding more wouldn’t affect the caseload for any of them. Besides, the court in recent years has decided fewer than half as many cases it did just a few decades ago.
Instead, court-packing aims to change how the Supreme Court decides its cases. The left is trying to consolidate power and has decided that the high court needs to knuckle under, know its place and do what it’s told.
We’ve been here before. The Declaration of Independence lists political manipulation of the courts as one of the “injustices and usurpations” by which King George imposed “absolute Tyranny over these States.” The Founders responded by constitutionally protecting federal judges’ tenure and compensation.
Round two came when President John Adams and the Federalist majority in Congress lost the 1800 election. Before turning out the lights, they quickly passed the 1801 Judiciary Act to reduce the Supreme Court from six to five seats. When President Thomas Jefferson and his Democratic-Republican allies in Congress restored that seat in 1802, Rep. John Bacon suggested adding “two or three more judges to the Supreme Court.” But Jefferson’s party joined with the rival Federalists to squash the court-packing bug. House members argued that adding “new and unnecessary” seats would “destroy the independence of the judges.”
FDR tried the next court-packing gambit. Fresh from a landslide reelection and with massive House and Senate majorities, he could have completed this hostile takeover of the Supreme Court. Instead, his own party rejected the scheme. The Senate Judiciary Committee report on the court-packing bill called it “an attempt to change the course of judicial decisions” by “neutralizing the views of some of its present members.”
It was, the report said, an attempt to “expand political control” over the judicial branch and would “undermine the independence of the courts.” Three-quarters of the senators who voted to reject the plan in July 1937 were Democrats.
The burden is on court-packers to show that America’s Founders, as well as both political parties in 1802 and 1937, were all wrong — that judicial independence is no longer a principle to be defended, but a roadblock to be removed. Yet they haven’t even tried to make that case.
Instead, they are still having a tantrum about the GOP Senate refusing to confirm President Barack Obama’s 2016 nomination of Merrick Garland and its 2020 confirmation of Justice Amy Coney Barrett. Despite continued cries that those Supreme Court seats were “stolen,” however, the left lost those fights fair and square.
When he chaired the Judiciary Committee in 1992, then-Sen. Biden refused to hold a hearing for dozens of President George H.W. Bush’s judicial nominees. The New York Times headline on Sept. 1, 1992, read: “Waiting for Clinton, Democrats Hold Up Court Confirmations.” Did Biden “steal” those seats?
In 2005, then-Senate Minority Leader Harry Reid insisted that the Constitution does not require the Senate “to give presidential nominees a vote.” Was he advocating “seat-stealing?”
Of course not. The Senate has handled Supreme Court nominations at least a dozen different ways over the years and, while it frustrated Democrats and their allies on the left, nothing in the confirmation process for either Gorsuch or Barrett violated any rule or was improper in any way. Yet that tick has burrowed so far under the left’s skin that they still claim it justifies court-packing.
In a 1937 case, Justice George Sutherland wrote that if the Constitution “stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms.” The Senate Judiciary Committee rejected court packing a few weeks later because, it said, judicial independence is “immeasurably more important” than any short-term political agenda.
Court-packing is still a “bonehead idea,” and the permanent weakening of judicial independence would still be a “terrible, terrible mistake.”
Thomas Jipping is a senior legal fellow in the Meese Center for Legal and Judicial Studies at the Heritage Foundation.