Tuesday 27th October 2020

Home » Frontpage » Currently Reading:

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 DeaconMike@q.com, and hear him every Thursday at 10 a.m. Central on Faith On Trial on IowaCatholicRadio.com.)

Share Button

2019 The Wanderer Printing Co.

Twitter Feed

Pope calls for civil unions among "gays" - it's over two years since he promised a report on McCarrick - where is the report - just asking!

Trump Shined tonight! How many of those 40 million that have voted already, want their ballots back?

Our apologies . . . we are having technical difficulties with our website. Hope to be up soon.

Load More...

Polish president Duda welcomes landmark abortion ruling

CNA Staff, Oct 23, 2020 / 06:00 am MT (CNA).- Polish president Andrzej Duda welcomed a landmark court ruling on abortion Friday. He told the newspaper Dziennik Gazeta Prawna Oct. 23 that he supported the constitutional court’s verdict that a law permitting…Continue Reading

Pope Francis to create 13 new cardinals, including Washington Archbishop Gregory

Vatican City, Oct 25, 2020 / 06:00 am MT (CNA).- Pope Francis said Sunday that he will create 13 new cardinals, including Washington Archbishop Wilton Gregory, at a consistory on Nov. 28, the vigil of the First Sunday of Advent.…Continue Reading

Pope Francis calls for ‘integral ecology’ in TED Climate Countdown video

Vatican City, Oct 11, 2020 / 05:30 am MT (CNA).- Pope Francis sent a video message to the TED Countdown summit on climate change Saturday explaining how a more “integral ecology” can help the poor. “Science tells us, with more…Continue Reading

Beatification of Carlo Acutis: The first millennial to be declared Blessed

With the beatification of Carlo Acutis in Assisi Saturday, the Catholic Church now has its first “Blessed” who loved Super Mario and Pokémon, but not as much as he loved the Real Presence of Jesus in the Eucharist. “To be…Continue Reading

‘All-star,’ ‘brilliant jurist’: Pro-life leaders thrilled Trump nominated Barrett to Supreme Court

September 26, 2020 (LifeSiteNews) – Supreme Court nominee Judge Amy Coney Barrett is “an absolute all-star” and “a judicial role model for the next generation,” pro-life leaders said today.  If confirmed, Barrett will replace pro-abortion Justice Ruth Bader Ginsburg, who died just…Continue Reading

Farewell, Uncle Di: Father Paul Mankowski, RIP

My editorial career has brought me into close contact with quite a few impressive thinkers. I have worked with famous authors, with noted theologians and philosophers, with canny political strategists, with at least a half-dozen Nobel Prize winners. Among them…Continue Reading

VIDEO: BLM mob threatens, chases Rand Paul down streets of DC

WASHINGTON, D.C., August 28, 2020 (LifeSiteNews) – Republican Sen. Rand Paul of Kentucky found himself the target of left-wing violence yet again Thursday night as protesters swarmed him as he was leaving the White House, chasing him and his wife…Continue Reading

Planned Parenthood acknowledges Margaret Sanger’s ‘racist legacy’, continues abortions

CNA Staff, Jul 21, 2020 / 11:05 am MT (CNA).- The New York affiliate of the nation’s largest abortion provider said Tuesday it will remove the name of its founder, Margaret Sanger, from its Manhattan building because of her support…Continue Reading

Statue of Virgin Mary beheaded at Tennessee parish

CNA Staff, Jul 15, 2020 / 10:40 am MT (CNA).- A statue of the Blessed Virgin Mary was attacked this weekend at a parish in Chattanooga, Tennessee, the third reported incident against a statue of Mary occuring in the same…Continue Reading

21 doctors tell bishops Communion on tongue ‘safer’ than in hand

June 26, 2020 (LifeSiteNews) – Twenty-one Austrian doctors have authored a letter appealing their country’s Bishops’ Conference to lift the de facto ban on receiving Holy Communion on the tongue, which has been enforced since Communion in the hand was…Continue Reading

Catholic priest among defenders of St Louis statue

CNA Staff, Jun 27, 2020 / 09:36 pm MT (CNA).- Fr. Stephen Schumacher, a priest of the Archdiocese of St. Louis, was among the defenders of a prominent statue of the city’s namesake as protesters called for its removal Saturday.…Continue Reading

‘I cannot remain silent’: Madison Catholic bishop condemns destruction of religious statues

Denver Newsroom, Jun 24, 2020 / 04:08 pm MT (CNA).- As rioters across the United States target statues depicting historical figures, the Bishop of Madison, Wisconsin on Tuesday denounced that destruction, along with calls to destroy some depictions of Jesus…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.

  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Interview With Cardinal Burke . . . Discriminating Mercy: Defending Christ And His Church With True Love

  By DON FIER (Editor’s Note: His Eminence Raymond Leo Cardinal Burke, Patron of the Sovereign Military Order of Malta and Founder of the Shrine of Our Lady of Guadalupe in La Crosse, Wis., graciously took time out of his busy schedule to grant The Wanderer a wide-ranging interview during a recent visit to the Shrine. Included among the topics…Continue Reading

Developing Lives Of Peace After The Heart Of Mary

By RAYMOND LEO CARDINAL BURKE (Editor’s Note: His Eminence Raymond Leo Cardinal Burke delivered the address below at the 32nd Annual Church Teaches Forum, “The Message of Fatima: Peace for the World,” Galt House, Louisville, Ky., July 22, 2017. The address is reprinted here with the kind permission of Cardinal Burke. All rights reserved. This is part one of the…Continue Reading


Kamala Harris is an Anti-Catholic Bigot

Today . . .

Bishop Strickland . . . The Church’s Clear Teaching

Our beautiful Catholic faith always shows respect for every person and calls them from the darkness of sin into the light of faith. Although the opinion expressed recently by Pope Francis is confusing let us simply turn to the Church’s clear teaching on the question of legal recognition of homosexual unions. We absolutely embrace every person with compassion but let us never forget that the greatest compassion is to draw the children of God closer…Continue Reading

">“We have A Bad Pope”

Pope Francis calls for civil union law for same-sex couples, in shift from Vatican stance

In a documentary that premiered Wednesday in Rome, Pope Francis called for the passage of civil union laws for same-sex couples, departing from the position of the Vatican’s doctrinal office and the pope’s predecessors on the issue. The remarks came amid a portion of the documentary that reflected on pastoral care for those who identify as LGBT.  “Homosexuals have a right to be a part of the family. They’re children of God and have a…Continue Reading

Dutch government backs euthanasia for under-12s

The Dutch government will permit doctors to euthanise terminally ill children aged between one and 12 after months of debate within the ruling coalition. The country’s health minister, Hugo de Jonge, said a change in regulations was necessary to help “a small group of terminally ill children who agonise with no hope, and unbearable suffering”. The government estimates that the new rules, lifting the threat of prosecution from doctors,

">Another Must Watch Video!

The Bishop Strickland Hour – Week of September 29

Lippmann: Insight For Our Times

By JUDE DOUGHERTY In speaking of the intellectual temper of his time, George Santayana in 1913 wrote on the opening page of his The Winds of Doctrine: “The shell of Christendom is broken, the unconquerable mind of the East, the pagan past, the industrial socialistic future confront it with equal authority. Our whole life and…Continue Reading

A Movie Review . . . Looking At The Two Crowns Of St. Maximilian Kolbe

By REY FLORES Originally released in Poland in 2017, the film that tells the story of St. Maximilian Kolbe has been overdubbed in English for its North American release through Fathom Events.Two Crowns is the first film showing, up to now, unknown facts about the life of Franciscan friar, St. Maximilian Kolbe. This is a…Continue Reading

They Call It A Hearing, But They Don’t Listen

By TERENCE P. JEFFREY When Democratic Sen. Amy Klobuchar of Minnesota began her 30-minute turn at questioning Supreme Court nominee Amy Coney Barrett in the Senate Judiciary Committee on Tuesday afternoon, October 13, Democratic Sen. Mazie Hirono of Hawaii was not in the room.Hirono apparently was not that interested in what she anticipated Klobuchar would…Continue Reading

Crowds Hidin’ From Biden?. . . Dems Support Another Court Revolution As Joe Goes His Lonely Way

By DEXTER DUGGAN PHOENIX — A local television reporter noted her puzzling setting on October 8. “This is a huge event politically, but you can’t tell by the outside of the Heard Museum. There’s really not a lot going on here,” she said, stepping aside to let her camera operator reveal just the normal flow…Continue Reading

The Rorschach Bible . . . On Icons And The Holy Face

By JOHN G. BOULET, MD (Author’s Note: This article was presented on October 1, 2020, Feast of St. Thérèse of the Child Jesus and the Holy Face, or October 3 according to the pre-1963 calendar. © 2020.) + + Hermann Rorschach (November 8, 1884 to April 1, 1922) was the Swiss psychiatrist who developed the…Continue Reading


Our Catholic Faith (Section B of print edition)

Live The Word With Joy

By FR. ROBERT ALTIER Thirtieth Sunday In Ordinary Time (YR A) Readings: Exodus 22:20-261 Thess. 1:5c-10Matt. 22:34-40 In the second reading today, St. Paul extols the Thessalonians for their great faith. This faith came through hearing the Gospel preached by St. Paul. However, it is interesting to note that St. Paul speaks of how the people received the Word of…Continue Reading

A Leaven In The World… It Is A Sin To Vote For Biden

By FR. KEVIN M. CUSICK We were treated again this month to the political spectacle of a Supreme Court nomination hearing. Amy Coney Barrett sat patiently, and mostly silently, while Democrat politicians forced her and us to hear them once again rant on about every hot-button issue they believe will promote their careers and increase their power.Put these creatures in…Continue Reading

Catholic Replies

Editor’s Note: We are in the process of reducing our supply of books and are offering them to interested readers at a substantial discount. The books available, all in mint condition, are Catholic Replies and Catholic Replies 2 (both $17.95), All Generations Will Call Me Blessed and Who Do You Say That I Am? (both $10.95), and Catholicism & Reason…Continue Reading

Jesus Is The Only Path To Peace

By MOST REV. JOSEPH STRICKLAND We all long for peace. Yet, it seems that everywhere we look in these tumultuous times, we see violence and hostility. Major cities are besieged with protests. Many have moved away from any claim to being peaceful. Sadly, they foster and promote violence and destruction. In the nineteenth chapter of the Gospel of St. Luke…Continue Reading

Catholic Replies

Q. Thank you for answering my question about the false claim that the Virgin Mary was an “unwed mother.” However, in the Rosary Handbook I use for meditations, it says that Joseph “went to be registered with Mary, to whom he was engaged and who was expecting a child.” Please comment on the word “engaged.” — S.B., Kentucky.A. Joseph and…Continue Reading

Catholic Heroes . . . St. Henry Morse

By DEB PIROCH Born to Protestant parents during extremely turbulent times in English history, during the reign of Queen Elizabeth I, young Henry Morse (1595-1645) was studying law at Grey’s Inn in London and living a “normal” life — until some force moved him to convert to Catholicism. This, despite the fact that Catholics had been tortured and martyred both…Continue Reading

Catholic Heroes… St. John Mary Vianney

By DEB PIROCH Today, so much of Catholicism has been “dumbed down.” If those in the pews recognize the name of this great saint of Ars, France, they may know only that he is the patron saint of priests. Without the priesthood, there are no sacraments, no Masses, no Blessed Eucharist. When urged to pray for vocations, we must pray…Continue Reading