Welcome to Byron York’s Daily Memo newsletter.
Was this email forwarded to you? Sign up here to receive the newsletter.
ANOTHER PROGRESSIVE DREAM NOT GONNA HAPPEN. On Capitol Hill, progressives are struggling with the slow shrinking of their dream to spend five, six, seven trillion dollars on a massive social policy bill that would, in the words of the New York Times, “touch virtually every American’s life from conception to aged infirmity.” But even as that slow shrink takes place, another dream — packing the Supreme Court — is also fading from view.
Back in the 2020 Democratic primaries, several candidates signed on to the general idea of adding more justices to the Supreme Court to outweigh the Trump appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Because Gorsuch was confirmed after Senate Majority Leader Mitch McConnell stiff-armed President Barack Obama’s choice for the court, Merrick Garland, and because Barrett was confirmed late in Trump’s term, there was much talk among progressives that the court and its decisions no longer had “legitimacy.”
Candidate Joe Biden tried to humor the firebrands. After ducking the question, he finally promised that if he were elected, he would appoint a bipartisan commission to study the issue. You know what they say in Washington about commissions — if you don’t want to do something, but you also don’t want to be seen explicitly refusing to do it, appoint a commission. That way, nothing will get done, but you can claim to have taken action.
On April 9, President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States. Its purpose was to explore the “principal arguments in the contemporary public debate for and against Supreme Court reform.” (In Democratic-speak, court “reform” means court “packing.”) The White House appointed 36 members, skewing heavily toward progressives but also including some conservatives, two of whom have since resigned.
Subscribe today to the Washington Examiner magazine that will keep you up to date with what’s going on in Washington. SUBSCRIBE NOW: Just $1.00 an issue!
Now, we have a draft of the commission’s work. And even with a number of progressives on board, the group has produced an on-the-one-hand-on-the-other-hand assessment of court packing. To make Democrats happy, the report notes that many progressives believe Republicans have used “underhanded measures” to create a conservative majority on the court. The GOP-run confirmation process has “cast a shadow on the legitimacy” over the court that “could, over time, affect the willingness of the public … to treat the Court’s rulings as authoritative,” the report says.
The commission made a nod toward those who believe adding at least two more justices would “help restore balance to — and thus the legitimacy of — the Court.” A bigger court might also be more diverse in terms of “gender, race, ethnicity, religion, sexual orientation, gender identity, educational and professional background, and geographic origin,” the report says. And a bigger court might be able to decide more cases.
Those were the points to make progressives happy. After that, though, the report lists the significant dangers of packing the court. “The risks of Court expansion are considerable,” the report says, “including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy.” The public doesn’t support court packing, and many would view the effort as a “partisan maneuver.” Republicans would see the move as “a dangerous power grab by one political party” that would erode the legitimacy of the court.
In addition, the commissioners write, expanding the court once might well lead to expanding it again in the future, leading to “a continuous cycle of future expansions.” It might also make Senate confirmation fights even more toxic. And an expanded court might not be more efficient — with more justices, it might take longer to get anything done.
And so on. Rather than a ringing call to arms for court packing, the Biden Commission’s report will be a classic Washington nothingburger.
“This was not even close to being worth the wait,” said Brian Fallon, head of a court packing advocacy group called Demand Justice. “The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several diehard conservatives who are fully content with the status quo.” Other angry court-packing proponents said similar things. Summing up, the Nation wrote that the commission was “designed to fail” and be “an excuse to do nothing.”
What did they expect? Changing the makeup of the Supreme Court, which has not been done in more than 150 years, would be a huge deal under any circumstances. Every conservative instinct in the body politic leans against it. But it’s a particularly crazy idea now when Democrats have the barest of control over Congress. Changing the number of justices on the court would require Congress to pass a law. In the House, the Democratic majority is just a handful — look how much trouble the party is having agreeing on a spending plan. And in the Senate, Democrats do not control a majority of seats — it is tied 50-50, and the party has to rely on Vice President Kamala Harris to break a tie. Then there is the filibuster.
And progressives somehow think they can enact an enormously consequential, far-reaching change such as court packing without even having a firm grip on Congress? Are they thinking at all? Of course the Biden Commission has come up with a do-nothing report. That’s because nothing is not only the right thing to do, it is the only thing Democrats, with their current level of power in Washington, can do.
For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show — available on the Ricochet Audio Network and everywhere else podcasts can be found. You can use this link to subscribe.
