President Joe Biden, the late Supreme Court Justice Ruth Bader Ginsburg, and Justice Stephen Breyer have all questioned the wisdom of packing the Supreme Court.
The views expressed by the Democratic president, and two justices appointed by past Democratic presidents, are increasingly relevant as liberal activists seek to expand the number of Supreme Court seats from nine to 13, presumably filling the four new seats with ideologically friendly justices.
Biden in 1983 called such a move “boneheaded.” Ginsburg warned that it was a “bad idea” when former President Franklin Roosevelt tried, and failed, in 1937 to expand the Supreme Court and add favorable judges.
Their comments stand in contrast to those far-left members of Congress who on Thursday introduced a bill that proposes expanding the Supreme Court from nine to 13 members.
Democratic Rep. Mondaire Jones of New York, a freshman member helping to lead the bill, said in a tweet on Wednesday night: “Supreme Court expansion is infrastructure.” The quip was a reference to Democrats’ expanded definition of infrastructure, such as calling child care infrastructure, as Biden pushes his “American Jobs Plan” infrastructure agenda.
DEMOCRATS READY LEGISLATION TO ADD FOUR SEATS TO SUPREME COURT
House Judiciary Committee Chairman Jerry Nadler is also leading the legislation in the House, and Massachusetts Sen. Ed Markey is leading a Senate version of the proposal.
“President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court. It was totally within his right to do that. He violated no law. He was legalistically, absolutely correct,” Biden said in 1983, when he was the ranking member on the Senate Judiciary Committee.
“But it was a bonehead idea,” he said. “It was a terrible, terrible mistake to make. And it put in question, for an entire decade, the independence of the most significant body, including the Congress included in my view, in this country, the Supreme Court of the United States of America.”
Ginsburg’s stated opposition to court expansion came in 2019, as Democratic presidential primary candidates floated expanding the Supreme Court.
“Nine seems to be a good number. It’s been that way for a long time,” Ginsburg said. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
“If anything would make the court look partisan,” she added, “it would be that one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”
Another liberal-leaning justice, Stephen Breyer, said last week that court-expansion advocates should “think long and hard” about making that move.
“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” he added.
During the presidential campaign, Biden stepped back from his long-held position in favor of keeping the number of members at nine. The death of Ginsburg and the confirmation of Trump-appointed conservative Justice Amy Coney Barrett prompted more calls for expansion to offset the conservative justices.
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Biden refused to answer whether he supported court expansion before finally saying that he is “not a fan” of court-packing. But he said that if he was elected, he would create a commission to study the issue. The president last week announced a 36-person commission this week to spend 180 days studying whether to expand the Supreme Court, fulfilling that campaign pledge and fueling court-expansion advocates.
