By STEPHEN M. KRASON
Joe Biden has established — by means of executive order, as usual — a commission to study “reforming” the Supreme Court. Interestingly, there hasn’t been any request coming from the third branch itself — from the current justices — or even a major push from the legal community to do this. It’s supposed to be a bipartisan commission, but one can be sure it will be dominated by leftist legal scholars with the Republican partisans who will be selected likely being pseudo-moderates who will be ready to go along.
At best, there might be a token genuine constitutionalist or two on the commission who will have little influence on its proceedings and conclusions. Nor should one believe that the commission will address the truly central, decades-old problems with the court: its frequent overstepping of its constitutional authority by in effect legislating and making national policy and its fashioning of rights that have no basis at all in the Constitution, our constitutional tradition, or even the common law (such as abortion, sodomy, and same-sex “marriage”).
The purpose of this commission is nothing other than to provide a grounds — a justification — to enable the Biden administration and the congressional Democrats to make the bold move — a la FDR — of increasing the number of justices (i.e., of “packing the court”). A bill to do this has already been introduced in Congress.
The momentum to do it will be added to by the hearings that are apparently planned before the commission to allow other scholars and spokesmen from different organizations and interests to express their views. Such hearings are virtually guaranteed to be dominated by leftist activists and organizations, simply because they are the ones out there in larger numbers and perpetually pushing more aggressively than conservative organizations. Indeed, there are very few organizations dedicated specifically to upholding the American constitutional tradition and the proper role of the judiciary.
Actually, the Biden administration’s hope is probably that it won’t even have to go to the point of packing the court to achieve its — and the left’s — ends. By stirring up support for it in the Democratic Party and among its allies and parading an array of legal scholars who are more dedicated to leftist political ends than genuine constitutionalism before the commission, it will hope to put pressure on the current court to deliver what the left seeks (such as reaffirming the 1973 Roe v. Wade and Doe v. Bolton abortion decisions at a time when various states are passing pro-life legislation).
It doubtless remembers that while FDR “lost the battle, he won the war”: his Court-packing proposal lost, but the Supreme Court began to reverse itself and routinely started to uphold New Deal legislation. This happened when Justice Owen Roberts started to change his votes from anti-New Deal to pro-New Deal. The Biden administration similarly may be counting on another swing vote to uphold the left’s convoluted constitutionalism. One wonders, in light of his actions in different cases that have come before the court, if it may be another Roberts: Chief Justice John Roberts.
There is no question that this commission is the result of Donald Trump’s three appointments to the court which gave the majority to the so-called conservatives, the constitutionalists. When the left figured that it finally had lost control of the one branch of government that it has counted on since the second FDR term to give it what it has wanted when it couldn’t get it from the other ones, it had to think about how to regain it. Court-packing — or the threat of it — seemed to be the way to do it and at least from the time of the 2020 campaign, when Biden first proposed this commission, calculated that this would be the least controversial way to pull it off.
In a certain sense, however, the court itself invited something like this budding challenge to it. The justices’ unwillingness — at least a majority of them — to take up the cases challenging the 2020 election results in certain states — even though the 2000 Bush v. Gore precedent indicated it should have and dealt with the same issues — showed a lack of courage, a reluctance to tackle questions that have immediate political implications and — perhaps at a deeper level — an unwillingness to confront the massive wall of leftist opinion-makers stretching across all major institutions of current American life.
One wonders if most of the justices were following the lead of their chief, Roberts, who seems to have made upholding the prestige of the court an overriding concern, and perhaps believed that if those opinion-makers are challenged too directly that prestige inevitably will suffer. The reality, however, is that it is such unwillingness that further accelerates the court’s loss of prestige and authority.
If the justices back off from taking important cases and don’t speak up against the subtle attack on judicial independence represented by the current commission and the court-packing scheme it will be fronting for — ironically, only left-leaning Justice Breyer so far has voiced opposition — it can only expect further challenges. History shows in many different contexts and in many different places that if one tries to accommodate the left, it just grabs for more.
I’m not suggesting with all this that the political branches should not act to oppose genuine judicial overreaching — I have written about that a great deal over the years — but the independence and co-equal character of the third branch cannot be allowed to come under attack. Moreover, this current attack on the court is a blatant attempt to further a political agenda. In fact, it is a political agenda some or many of whose elements are at odds with the American constitutional tradition. That is not surprising because much of the left has little use for American traditions, constitutional and otherwise.
(Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears frequently in The Wanderer. He is professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; The Public Order and the Sacred Order; The Transformation of the American Democratic Republic; and Catholicism and American Political Ideologies. The views expressed here are his own.)
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