In 1937, President Franklin Roosevelt’s (FDR) effort to expand the power of the federal government at the expense of individual liberty and federalism was blocked by the United States Supreme Court’s Originalist reading of the Constitution. As a result, he instead initiated a plan to pack the Court with Justices who shared his sympathy for big government. This assault on the independence of the judiciary consisted of a plan that would add one Justice – up to a total of fifteen – for every Justice who stayed on the Court over the age of 70.
In 1983, then-Senator Biden stated that FDR’s attempt was a “bonehead idea.” In 2020 while running for President, candidate Biden said the American people do not deserve to know his position on packing the Supreme Court, whose membership had been capped at nine since 1869.
Now we know that President Biden has in fact been prepared to radically change the size and scope of the Court all along. After engaging in a deliberate and intentional effort to keep his views secret, after capitulating to the Left on virtually every issue including the Green New Deal, and after imposing unconstitutional limits on Red States’ power to cut taxes, now President Biden has apparently surrendered to the radical Left’s ambition to assume absolute power.
This is part of a revolutionary power grab by progressives who are not satisfied with the already intrusive size of government and wish to micromanage every aspect of our lives from here to eternity.
This week President Biden issued an Executive Order creating a commission to study the Court. The commission will issue its recommendations within 180 days of its first meeting.
The commission is charged with studying the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of specific reform proposals. The topics will include an examination of (1) the genesis of the reform debate; (2) the Court’s role in the constitutional system; (3) the length of service and turnover of Justices on the Court; (4) the membership and size of the Court; and (5) the Court’s case selection, rules, and practices.
The commission’s charge seems designed to facilitate control of both the Supreme Court and the Constitution by the Executive and Legislative branches of government.
This approach would, for example, allow the Executive branch and the Congress to pack the Supreme Court, potentially deprive the Court of jurisdiction in certain matters–meaning the Court could no longer hear certain cases–and impose term limits on the Court’s Justices. The commission could also recommend an expansion of the Court via the appointment of additional Justices who are prepared to rewrite the Constitution by employing a suspect legal doctrine called “living constitutionalism.”
Living constitutionalism would enable progressives to substitute their contemporary ideas for the text of the Constitution, thus placing a whole slew of constitutional rights, including due process, freedom of religion, the right to bear arms, and even the right to vote, subject to the whim of unelected judges on a stacked bench. This would mean that the American people would no longer be governed by a written Constitution that each and every citizen can understand. Rather we would be governed by the fancy whims of global elitists who are prepared to disparage the “little people” and other “deplorables” and potentially place the rule of law and our republic on a road paved with hostile intentions.
Packing the Court was a bonehead idea in 1937 and in 1983. It still is a bonehead idea in 2021.
Yet, already the radical Left in Congress have proposed the first serious Court-packing bill in decades.
The ACLJ is prepared to take action to ensure that the effort by the Biden Administration to assault judicial independence cannot stand. Join us.
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