Originally Authored at TheFederalist.com
It’s difficult to sit here and make substantive arguments against the Democrats’ Supreme Court “reform” proposal, since everyone knows it’s just a cynical ploy to delegitimize both the court and the Constitution.
Ask yourself this: would any Democrat support the president’s court-packing scheme if they believed Republicans would win both Houses and the presidency? Of course not. It’s Calvinball all the way down.
And it is a court packing scheme. An unconstitutional one. One imagines the term “court packing” hasn’t polled very well with the public, so Biden — or whoever’s running the White House these days — signed off on a backdoor plan. An 18-year term limit for justices would, very conveniently, turn a 6-3 originalist majority into a 6-3 “living and breathing document” majority that would overturn many recent decisions, and rubber stamp a slew of federal abuses.
One might argue it’s all just an election gimmick, since the chances of the reform package passing are close to nil. That’s not the point. The left has normalized the notion that the Supreme Court is both illegitimate and corrupt if it fails to bend to the will of partisans.
After all, none of the left’s objections are grounded in anything resembling a legal argument. The entire case is centered around the specious idea that the court is failing because it does not adhere to the political vision of Democrats. They don’t even pretend to care about neutrality in law, much less the law itself. The contemporary leftist is a consequentialist with no limiting principles.
Speaking of authoritarians. Kamala Harris contends that packing the Supreme Court is necessary because “there is a clear crisis of confidence facing the Supreme Court.”
Is there?
First off, we find ourselves here because of a decades-long attacks on the institution. Democrats have made a mockery of confirmation hearings since the 1980s. After Barack Obama publicly castigated the Supreme Court for upholding the First Amendment, things really took off. Wealthy progressive activist groups began cooking-up pretend scandals and laundering them through faux journalistic operations. The media can now affix with the phrase “plagued by ethic scandals,” or some such nonsense, to every mention of the court.
If there is any crisis of confidence, it’s because the left concocted one.
Even still, as Casey Mattox helpfully points out, Gallup finds that 30 percent of Americans have a “Great Deal/Quite a Lot” of confidence in the Supreme Court. The number has risen slightly in the past two years. Another 31 percent say they have “Some” confidence in SCOTUS.
So, let’s set aside that pesky Article 3 of the Constitution for a moment. If polling is the excuse for stripping the independence of a branch of government, why would we allow Congress, with its 9 percent confidence rating, to do it?
Justices already enforce a code of judicial conduct. There is zero evidence any of them have engaged in unethical behavior on the bench that personally benefited a third party, much less themselves. And there is no evidence justices have deviated from their long-held legal philosophies because they vacationed with a rich friend or any other reason.
It’s also worth remembering that Democrats invented a bunch of new standards to smear Clarence Thomas that they would never follow themselves. Most judicial committee members leading the charge to delegitimize the court have traded in on their position to enrich themselves, including Dick Durbin, Vietnam War fabulist Richard Blumenthal, conspiracy theorist Sheldon Whitehouse, and Peter Welch.
Come to think of it, maybe SCOTUS should be writing ethics rules for Congress.
Democrats want to institute their ethics code to create a system that allows partisans — armed with the newest garbage Politico or ProPublica churns out for its progressive funders — to slander justices in another congressional show trial and bogus investigations.
Sorry, the Supreme Court is an equal branch of government. Chuck Schumer is free to threaten justices, but they still don’t answer to him.
Nor do they answer to Biden, whose family became wealthy peddling a shady influence racket. The presidency, incidentally, has a 26 percent confidence rating with Gallup. The media, deservingly, is near the bottom of the list. Americans, in fact, have more trust in the Supreme Court than they do state-run schools or unions or big business or banks or the criminal justice system.
“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach,” Biden says.
The only “personal freedom” Democrats are concerned about is legalizing abortion on demand into the ninth month. Just say Dobbs, because I can’t think of a single individual liberty the contemporary left wants to safeguard or enhance.
Though, the president is correct in noting that the court has abnormally upheld the Constitution in recent years. Even then, majority concurrences are quite diverse. And the notion that the textualists walk lock step more than the left is a complete fantasy, as the last session showed.
The president, by the way, has been in government since 1973. Two thirds of the members of the Democrat-controlled Senate are now over 70. The judiciary chair Dick Durbin has been in Congress since 1982.
Anyway, the lifetime appointments for justices are meant to shield the high court from the vagaries and fleeting pressures of political debate. Which is exactly what bothers the left the most: the Supreme Court doing its job. If we knew exactly when confirmation votes were going to take place, rest assured the process would degenerate into an even uglier partisan mess. Which, again, is exactly what the anti-norm leftist desires.
Indeed, the Democrats’ plan to pack the Supreme Court, the last properly functioning institution in D.C., is an attack on constitutional order, and its long-term consequences are far more corrosive than anything that happened on Jan. 6. It’s not even close, really.