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Playing Politics with the Supreme Court

Judge John Wilson (ret.) comments on the Democrat’s attempt to pack the U.S. Supreme Court

After the passing of Justice Ruth Bader Ginsberg, I discussed a proposal that had not seen the light of day since the 1930’s – increasing the number of Supreme Court Justices.  At that time, I discussed the strong opposition FDR faced from within his own administration to this scheme, including his own then-Vice President, John Garner.  Yet, I also noted that “(u)nfortunately, unlike FDR, a President Biden would not be opposed by a Vice President Harris in anything, least of all a scheme to pack the Supreme Court with new progressive judges, nominated to counterbalance the conservatives who would be in the majority were Trump’s nominee to be approved by Congress.  This leftist dream scenario is entirely possible.” 

Since the inception of the Biden Administration a mere 3 months ago, the proposals to remake government have come fast and furious from the Democratic side of the House of Representatives.  As described by NPR, in March of 2021, “Democrats passed a sweeping package to overhaul election and campaign finance laws, as well as a bill to change policing policies that was originally drafted in the wake of the death of George Floyd…Last week, Democrats passed the Equality Act, which would explicitly ban discrimination against people based on sexual orientation and gender identity…in the weeks ahead, Democrats will take up legislation to expand labor rights, as well as gun legislation to enhance background checks for purchases and to…further tighten the background check system.”  

Of course, while “Republicans were nearly unified in opposition to all (these) measures,” yet, “(s)ince many of these bills were passed by Democrats in the previous Congress, they can be brought back up for House votes and bypass the committee process before April 1 under House Rules. All of them collected dust in the then-GOP-controlled Senate, but…Democrats are hopeful that a Democratic-controlled Senate will allow some of these bills to see ‘the light of day.’” 

Basically, then, the Democrats in the House have reached into their collective wastebasket, and reintroduced their “wish list” from years past, now that they have a friendly Administration in the White House.  

And speaking of blowing the dust off ancient proposals, guess which more than 80 year old measure has been reintroduced in the House?

A group of liberal Democratic lawmakers…proposed expanding the U.S. Supreme Court by four justices, aiming to end its conservative majority…Senator Ed Markey and House of Representatives members Jerrold Nadler, Hank Johnson and Mondaire Jones introduced legislation in both chambers that would expand the number of justices to 13 from the current nine.” 

This legislation comes in the wake of a Commission formed by yet another Executive Order from the desk of Joe Biden, tasked with the “study (of) potential U.S. Supreme Court changes including expanding the number of justices beyond the current nine…the 36-member commission will consider the ‘merits and legality’ of potential reforms to the nation’s top judicial body including adding justices or imposing term limits on their service instead of the current lifetime appointments.”  

As noted by Reuters, “Republicans fiercely oppose the idea of what is sometimes called ‘court packing.’ Some Democrats and liberal activists have said all options including expansion must be considered to counter an entrenched conservative majority that could threaten abortion rights, civil rights, gun control and access to healthcare in the coming years.” 

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As Congressman Markey states, “Republicans had politicized the court, undermining its legitimacy, and the measure would ‘restore balance.’ Republican former President Donald Trump was able to appoint three justices during his four years in office, giving the court a 6-3 conservative majority…’Our democracy is in jeopardy today because the Supreme Court’s standing is sorely damaged. And the way we repair it is straightforward,’ Markey said at a news conference in front of the court.” 

Of course, there is one obvious flaw in the reasoning presented by Representative Markey – if he wants to “restore balance” to the Court, then why does he seek the addition of 4 justices?  If those 4 additional justices join with the current 3-justice minority, those 7 justices would outweigh the votes of the 6 allegedly conservative justices – making a new majority of left-leaning justices.

Clearly, then, Markey and his allies do not want “balance” – they want to create a Supreme Court with a majority that would favor, and not rule against, Democratic/progressive legislation, such as the Equality Act, or new gun control measures.

One of the measures proposed by the current House, HR 1, the so-called “For the People Act” bears further study.  According to the Heritage Foundation, “H.R. 1 would…federalize the election process…(i)magine that, the same body of Congress that has less than a 25% approval rating will have a major hand in the administration of free and fair elections in Bismarck, North Dakota and beyond…this bill would be a federal takeover and nationalization of the running and administration of elections, basically taking it away from the states. It would change election rules to make it easier to cheat and easier to manipulate election results. And on the ethics and campaign finance rule changes, it’s designed to restrict and chill speech, political speech and political activity.” 

If you don’t agree with that characterization of the bill, here are some of the details; “The bill’s requirements that every state offer same-day and automatic voter registration have gotten plenty of attention, but the measure also includes a provision to…allow states to start registering minors to vote, as long as they are at least 16 years old…”  The bill “also contains nonbinding provisions to express Democrats’ support for policies that, for whatever reason, they didn’t include in the package. One declares support for D.C. statehood…” 

But most significant, the bill would establish federal standards for all, federal, state, and local elections.  As noted in the Washington Times, “Article I, Section 4 of the U.S. Constitution states that ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,’ but that ‘the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.’ In Federalist Paper No. 59, Alexander Hamilton contended that such regulation was only necessary in ‘extraordinary circumstances’…(a)ccording to Pew Research, voter turnout nationwide in the 2020 election was the highest it’s been since 1980…(t)his doesn’t make a strong case for a federal takeover…(e)ven worse, the legislation imposes significant and costly requirements in an effort to force every state to change their voting system into the form chosen by Mrs. Pelosi and Mr. Schumer. Remember, each state election system is unique — shaped by time and trusted by their respective voters. Forcing uniform standards, procedures, and expectations into state election systems — some far different than others and not built for those requirements, is like forcing a square peg into a round hole. It won’t work. Instituting massive change will bring chaos, and that chaos would bring with it the worst-case scenario — a loss of confidence by the people in the results of those elections.” 

Judge Wilson’s (ret.) Report concludes tomorrow

Photo: U.S. Supreme Court