Democrats’ Desperate Attempt to Pack the Supreme Court: A Constitutional Comedy of Errors

by Jeff Childers

How often have you heard media gassing about ‘democratic norms and institutions’? But whenever they don’t like the democratic norms and institutions, they just change and undermine them, which I believe is technically called “Calvin Ball.” The New York Times ran the story yesterday headlined, “Warning of ‘Extreme’ Agenda, Biden Calls for Supreme Court Overhaul.” Biden’s overhaul seeks to pack the extreme, far-right Court into a U-haul.

In a fiery, teleprompter-fueled speech in Austin, President Cabbage outlines his “proposals”:

• 18-year term limits;
• A ‘code of conduct;’
• Disclosures of gifts;
• Conflict of interest rules; and
• “Paring back“ the recent immunity ruling.

Standing in Democrats’ way is Article III of the Constitution:

 
Note that Article III only lets Congress dabble in the “inferior courts.” Not the Supreme Court. In this lawyer’s humble opinion, Biden’s proposals would require a Constitutional Amendment. Any laws passed by Congress (Article II) would be reviewed by the Supreme Court (Article III), which would probably strike them down as an unconstitutional violation of the separation of powers.

In the Times’ article, Notre Dame law professor Richard W. Garnett more or less agreed with me, and diplomatically noted, “We don’t really have completely clear rules about the extent to which Congress is able to regulate the internal practices of the court.” No such rules exist. Garnett added, “The things about retirement ages and term limits are complicated by the Constitution’s text. I think things like disclosure rules might be in a different category.”

When Garnett said Joe’s proposals were “complicated by the Constitution’s text,” he meant prohibited by the Constitution. Lawyers, am I right?

Democrats need a Constitutional Amendment, which isn’t likely to happen. As much fun as a Constitutional Convention of the States would be, Democrats wouldn’t risk it. It would be great if they did, but might have a few other suggestions for a Convention, like abolishing the income tax, and they don’t have enough states anyway.

So what gives? Why bother? The suggestions themselves are a way to attack the Court. They are intended to gin up controversy, which I always thought was a weird expression, since the last thing you need in a controversy is more mixed drinks.  But they are trying to smear the Court, for refusing to go along with Joe’s “commonsense reforms.”

Wash, rinse, and repeat. In 1937, Franklin D. Roosevelt infamously announced his so-called “court-packing” plan, which would have required all nine Justices to squeeze into a single office the size of a Toyota Prius. Merely announcing the packing plan did the trick, especially since several of the Justices were quite prosperously sized. The cowed Justices threw in the judicial towels and started rubber-stamping Roosevelt’s socialist New Deal, paving the way for the mess in which we currently find ourselves.

Democrats have been trying to pack up the Court ever since Biden took office. In 2021, euphoric media reported Biden’s Supreme Court Review Commission, which was widely predicted to recommend a brand-new court-packing scheme. Fortunately, the buck stopped at a dementia-addled root vegetable, so it went nowhere.

Biden’s latest broadside is ‘Plan B.’ They wish to intimidate the Court before the election cases start rolling in: Stay out of it.

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