Washington is abuzz in the wake of President Joe Biden’s long-anticipated announcement of a 36-member commission to study the Supreme Court’s structure. Here’s the good news for friends of our widely admired system of justice: This first serious effort in 90 years to pack the nation’s highest court is doomed to fail.
Above all, there is no discernible need for even modest tinkering with the court’s architecture, much less undertaking a major structural overhaul. To the contrary, year after year, the court consistently gets its work done with laudable efficiency and high professionalism. Observers inevitably disagree with the court’s decisions, but no one seriously complains about either the court’s processes or its productivity. Even Clinton-appointed Justice Stephen Breyer has recently sounded a thoughtful note of caution as forlorn calls for significant architectural change are bandied about.
Utterly lacking a national consensus that any structural change whatever is actually needed, the newly born commission’s eventual report is destined for an unceremonial dumping into the dustbin of history. The president and his advisers, including his astute chief of staff, Ron Klain, know this full well. So does Attorney General Merrick Garland.
So why go through this pointless, if highly ballyhooed, exercise? The answer is not hard to divine. This ill-conceived project is a jerry-rigged contrivance to try to appease the unappeasable wing of the party in power, generated in large part by former President Donald Trump’s astonishing accomplishment, collaboratively with Senate Republicans led by Mitch McConnell: the Senate’s confirmation of three Constitution-honoring judges to the nation’s high court. That was just too much for firebrands such as Senate Majority Leader Chuck Schumer, looking fretfully over his left shoulder at prospective challengers to his cushy seat, with his threat-filled outburst on the grounds of the nation’s foremost courthouse.
In no small part, Biden’s gesture toward his impatient left-wing critics has been fueled by the Supreme Court’s aggressively pro-liberty decisions in an enormously high-visibility category of cases — religious freedom, the latest battleground in the ceaseless culture wars of our time.
The addition of Justice Amy Coney Barrett has catapulted friends of religious freedom into the catbird seat, to the chagrin of increasingly aggressive secularist forces. In a touch of irony, within hours of the White House announcement of the new look-see commission, 16 blocks to the east, and late at night for good measure, a razor-thin, five-member Supreme Court majority struck yet another in a lengthy series of blows in favor of the nation’s first freedom. House worship gatherings in California could go forward, the court held on an emergency basis, notwithstanding cease-and-desist orders from Gov. Gavin Newsom’s seat of power in Sacramento.
This result was not unexpected. Since Barrett’s arrival in late October of last year, the three Trump-appointed justices have joined forces with Justice Clarence Thomas and Justice Samuel Alito to form a powerful five-member majority that routinely vindicates claims of religious liberty, including judicially mandated openings of houses of worship, as against the bar-the-church-doors approach of secularist-leaning governors, including New York’s Andrew Cuomo.
As illustrated in recent months by the church-closing cases, religious liberty has suddenly emerged as the most divisive civil rights issue of our time. The reason: Increasingly, individuals and communities of faith are under siege because of their acts of conscience grounded in ancient faiths, setting themselves outside the unforgiving norms of contemporary culture. But they are fighting back — with remarkable success.
Consider Jack Phillips, the Colorado custom cake baker. Jack is the national poster child for the oft-recurring battle between conscientious objectors and liberal governmental forces. A skilled cake-creation artist, Phillips could not, in conscience, custom-design a wedding cake to celebrate the nuptials of a same-sex couple. His mom-and-pop enterprise, Masterpiece Cakeshop, cheerfully serves any and all comers, offering a wide array of baked goods adorning the shelves of his suburban-Denver shop. But celebration of a marriage antithetical to traditional biblical norms would embody, to Phillips, an impermissible violation of his fundamental beliefs. He could not, in conscience, design that particular cake.
The Supreme Court, by a strong 7-2 majority, vindicated Phillips’s claim due to the naked hostility to religious faith and practice evinced by the Rocky Mountain State’s civil rights commission. Those secularist commissioners were aggressively dismissive of religious belief and matters of conscience. They went too far. Just as Congress can’t establish a “Church of the United States” or, contrariwise, penalize the views of people of faith, so, too, government officials’ display of hostility toward religious faith and practice steps across the line of constitutional permissibility.
As illustrated by the wedding cake case, quite frequently, the Supreme Court rules by a supermajority in favor of religious freedom claims — and at times, even unanimously. Consider a watershed decision, Hosanna-Tabor v. EEOC, which vindicated the right of a church-affiliated school to fire a teacher even though the school’s employment actions may have otherwise run afoul of the nation’s civil rights laws. Why? Because churches and church ministries, including religiously affiliated schools, must remain free of governmental control, even at the expense of foreclosing colorable claims of violations of important federal and state law protections.
Happily, notwithstanding the Biden court-packing gambit, expanding the court will not predictably change many of these pro-freedom outcomes. Why? Because in our constitutional order, liberty remains the baseline — even in the face of the unforgiving cancel culture. Preserving American freedoms, not packing the court in a misguided effort to change unwelcome outcomes, will inevitably remain the order of the day in a constitutional republic grounded both upon the rule of law and widely shared concepts of ordered liberty.
Ken Starr, former federal judge, solicitor general, and university president, is a bestselling author, including his recently published Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty (Encounter Books).
