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Please, Mr. Biden, Answer This Question

October 12, 2020 Frontpage No Comments


I am not a constitutional scholar. I was a simple next-door lawyer who made my living by helping people out of fixes, purchasing homes, adopting children, and plodding through the vexations of life. Nothing special; I graduated, passed the bar, took all my continuing education classes, and paid my bar membership — when I remembered.
But there is something that really scares me about where the law and our courts may be headed. In two and a half weeks, when the election is over, I’ll either feel relieved or on the verge of political despair. So I would like to know the answer to what I consider the most important unanswered question of the year:
Mr. Biden, will you pack the Supreme Court?
As I write this, the Democratic nominee has refused to answer this question, although senior members of his party have promoted the idea. It’s a fair thing to do, they say, because the number of justices is left to Congress; besides, it’s been done before.
Well, maybe, sorta. I think we need to look a little deeper first.
The Constitution, article III, section 1 simply states: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” That’s about it. No numbers, no qualifications listed, just that one sentence which is followed by the sentence stating that judges have no set terms of office, they “shall hold their offices during good behavior” which basically means for life.
So how did we get to the number nine and what is so magical about it? Well, the proponents of court-packing are correct about the court’s history. The current number was settled on in 1869 but prior to that the court membership fluctuated to as few as five and as many as ten. But what the proponents miss in their “what’s in a number” argument is that there were legitimate historical reasons for the number fluctuation.
The first Congress set the court at six justices. District courts were established to hear cases in the various states. However, in appeals from the district courts, justices from the Supreme Court would sit with district court judges to resolve the case before appeal to the top court. Rather than creating a new level of courts for each geographical circuit, Congress ordered that two Supreme Court justices and one district court judge would sit on the circuit panels.
This necessitated the Supreme Court justices to travel to different venues to hear these cases. Thus the justices would spend most of their time traveling the circuit to which they were assigned. Supreme Court justices would then schedule and meet in Washington, D.C., to hear the cases that were still being appealed by one of the parties.
Now as the nation expanded, there developed a need to expand the geographic boundaries of the circuits and as they were expanded it was necessary to add a judge or two to the High Court so that they could continue their function of “riding the circuit” with the judges from the local area. In 1837 with the admission of eight new states, Congress added two new circuits and two more justices, bringing the total to nine.
The admission of California added a new circuit and caused the addition of the tenth justice in 1863. In 1869 Congress set the number of justices at the current number, nine. In 1911 Congress created a distinct level of courts to hear the initial appeals from the district courts and the nexus between circuits and the number of justices was finally cut.
That’s how we ultimately got to nine. However, in 1937 President Franklin D. Roosevelt, unhappy with the Supreme Court striking down so many of his New Deal programs on 5-4 votes, began discussing the concept of increasing the court to fifteen. During that term, however, one of the associate justices drawing the president’s ire, Owen Roberts, took a legal left turn and upheld a Washington minimum wage law. The court packing plan then flopped with even Roosevelt’s supporters rejecting it.
It died in the Senate by a vote of 70 to 20, its defeat helped by Roberts’ “switch in time that saved the nine.”
Now, just as Roosevelt’s plan was aimed at shifting the ideological balance of the court by changing its composition, now the Democrats have suggested the same thing. During the primary campaign last year, Mayor Pete Buttigieg suggested the idea of a 15-member court composed of five Democrats, five Republicans, and five chosen by the first ten. Obviously that would require a constitutional amendment. However, the idea of just adding more justices became an easy option for Democrats and many party leaders, as well as rank and file members, have endorsed it.
And what a dream for them. A party controlling Congress and the White House could pack the court at a whim. Easy, simple, and a cute way to get around the conservative bloc and show Amy Coney Barrett who’s really in charge.
Problem is, of course, both sides can play that game as well as plenty of others with the make-up of the court. Congress could add requirements that required the appointment of a percentage of non-lawyers, or subject the court to a racial or gender balance, or even a political balance, as Mayor Buttigieg suggested.
And what kind of stability would that create? One of the hallmarks of the law should be its predictability: People want to lead their lives assured that they and their affairs will be safe and legal. How is that to happen with a permissive court that would be willing to curb property rights, First Amendment expression, religious tolerance, and other rights we’ve become used to?
The great debate over the court today is not about health care or abortion. It is about two differing judicial philosophies. In one the court is obligated to consider the words of the Constitution as understood by the authors of those words. The other sees the Constitution as a living document in which the courts breathe life into it by interpreting the words to give meaning to modern ideas, thus unofficially amending it by redefining concepts and terms.
Without a doubt there are things today that were not contemplated by the framers. But that does not mean their words were imperfect because of a change in time, as suggested by some.
Let me give you a quick example: The First Amendment grants the right to freedom of the press. In 1789 when the Constitution was adopted, “press” referred to a printing device by which people could use to communicate. There was no thought of radio, television, or the Internet. Yet they all fall under the freedom of the press because the concept of “press” was communication.
On the other hand, there is no right to privacy in the Constitution. Yet in Griswold v. Connecticut, a 1965 case in which Connecticut’s Comstock Law, banning the sale of any drug or device that prevented conception, was struck down as violating the right to privacy. So how did the court find that right? Well, in the penumbra, of course. That then brings up the question, what the heck is a penumbra?
A penumbra is an area of partial illumination, a place between a shadow and full light. Get it? A penumbra is a twilight area where constitutional rights that were never seen before hide until needed.
As I’m sure you are aware, Griswold’s progeny includes Roe v. Wade, and Obergefell v. Hodges, among others. Penumbras live!
In 2020, just as in 2016, the Supreme Court and the judiciary are front and center in the presidential election. Mr. Trump has not only shown us what kind of jurisprudential theory he is looking for in picking judges, he has given us a list from which he will pick. Mr. Biden refuses to do so, and as of this writing he even refuses to tell us if he supports the Democratic court-packing plan.
His response to the question is that he doesn’t want to make an issue of it. He’s running for the presidency of the United States. It’s already an issue; plain meaning vs. penumbras. He can’t kid himself out of this question. As the newspaper ad once said, “inquiring minds want to know.”
And there are a lot of inquiring minds asking the same question.
So, Mr. Biden, please tell us, do you support packing the Supreme Court? A simple yes or no will do.
(You can reach Mike at, and hear him every Thursday at 10 a.m. Central on Faith On Trial on

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