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April 9, 2021

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As was foreshadowed during the 2020 presidential campaign, President Joe Biden has ordered formation of a commission to -- in the words of the New York Times -- "study the status of the Supreme Court, with an eye toward making serious changes, including perhaps expanding the number of justices."  

 

I'm against the notion of adding justices, and also oppose using it as an issue on the checklist to validate anyone's "sensitive' and "progressive" bona fides.        

 

Point of order, your honor ... and everyone else.

 

You (and I) can be a progressive/liberal/Democrat and be opposed to court packing, regardless of who -- which party, which faction -- is pushing for it. 

 

If 2021 polarization dictates that we individually have to pick a Red/Blue side, accept every element of its agenda without question, and cower in fear of being accused of betraying ideals by making individual case-by-case judgments that deviate from the scripts, that's abominable.

 

That dynamic discourages candor and encourages phoniness in what should be the unfettered marketplace of ideas. 


I just don't like the idea of reacting to Supreme Court decisions and its doctrinaire makeup by seeking to add justices. Or adding justices each time the Court's philosophy -- in this case, the generally acknowledged 6-3  conservative majority -- is perceived to clash with that of a presidential administration.   

 

There are, and should be, nine justices. Trying to rationalize the addition of justices as some overdue administrative or housecleaning detail is disingenuons. The only reason it's an issue is because those proposing adding justices don't like its court's current leanings. It's court packing. At least admit that. In fact, proclaim it defiantly, noting the urgency of the issues in troubled times after three Trump appointments, and you'll be more credible. One of the Biden-Harris campaign's missteps was dodging questions on the issue.   

 

Term limits are more justifiable than trying to dilute one faction's influence and dominance by adding justices -- presumably of an "acceptable" philosophy. The nomination process and majority approval in the Senate is a filter, of course, but adding justices rather than waiting for individual openings distorts the process, which leads to an evolution and philosophical swing in the court's  makeup.     

 

Tightly focusing on the present, rather than looking long-range, is perilous. 

 

The hypocrisy of both "sides" is rampant in all of this, of course, since views change 180 degrees depending on the circumstances. Absolutely, Republicans' refusal to allow consideration of Barack Obama's nomination of Merrick Garland in early 2016, arguing it was inappropriate in an election year, heightened the hypocrisy of pushing through the nomination and approval of Amy Coney Barrett to suceed Ruth Bader Ginsburg shortly before the 2020 election. While the GOP's actions in flipping its views were unconscionable, we also should admit Democrats' views are just as malleable and adjustable to the moment, all depending on whose ox (or donkey or elephant) is being gored.            

 

The back-and-forth volleys of, "OK, but what about when you ..."? are tiresome. Set the standards and stick to them. 

 

When the Supreme Court ruled aspects of the New Deal to be unconstitutional, President Franklin Roosevelt pushed for the Judicial Procedures Reform Bill of 1937. His rationalization was that the court's actions hampered continuing U.S. efforts to climb out of the Great Depression. He happened to be right. But, again, adding justices each time the court's bent is at odds with the administration's isn't the answer.   


The Roosevelt court packing plan didn't specify the number of justices added, but called for a maximum of six -- one for each justice who was at least 70 1/2 years old and had served 10 years.         

 

Court packing would have set a dangerous precedent then, and it would set a dangerous precedent now.

 

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The above pithy 1937 editorial cartoon is from the History Channel's site. Its original caption was:  "Do We Want A Ventriloquist Act In The Supreme Court?" The fact of he matter is that, actually, we do. As long as the ventriloquist is from our party.

 

 

 
     

 

terry@terryfrei.com

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