The Supreme Thuggery of Democrats' Court-Packing Scheme :: 04/17/2021

T hat settles it. Henceforth, for baseball, we need 13 on the field. You know, for “balance.” After all, when the big leagues started playing the World Series in 1903, there were only 16 teams. Now there are 30. If you’re going to have 30 teams, there should be at least 13 players on each side, right? Maybe even 30!

Okay, okay, it’s a stupid idea. But you’ll have to forgive me: I watched Thursday’s Rockin’ Jerry & the Wokes show on the steps of the Supreme Court, and ever since, I’ve felt much stupider.

According to Congressman Nadler (D., N.Y.) and his progressive posse, the high court must be expanded, from the nine-member body it has been for over 150 years to the 13-member tribunal they say we urgently need it to be, because there are now 13 federal circuit courts of appeal. There were only nine circuits when the Supreme Court was set at nine justices in 1869.

This is nonsense, but that is par for the course, because it is not meant to be taken seriously as an argument.

The Dems’ Court-expansion-and-packing project is not a public-policy proposal. It’s thuggery. That explains the zany rationales Nadler et al. offered for it at their presser. Maybe the number should be 13 because that’s how many times they said “racism” (though I could be low-balling here). Or maybe expanding the Court is infrastructure, or part of the existential climate crisis. Makes total sense. See, the less this has to do with logic, the more the justices will have it in the front of their minds that the Left is crazy enough to do anything at this point, so they’d better be careful how they decide these cases — and even about what cases they decide to decide.

The size of the Supreme Court has nothing to do with the number of circuits — no more than the size of the Ninth Circuit bench (29 judges) has to do with that of the First Circuit’s (nine judges), or than the geographic jurisdiction of the Eighth Circuit (seven states) has to do with that of the Federal Circuit (nationwide for limited categories of cases), or of the District of Columbia Circuit (just the city of Washington).

When constitutional governance began, the Supreme Court had six members, covering three circuits. The lower federal courts — today’s 13 circuit courts of appeal and 94 district courts, in their majestic courthouses — did not exist as we know them today. Supreme Court justices used to “ride circuit” on horseback or in carriages over the rough terrain of our growing country. In the circuits, they’d hear cases with a local district judge. It was a time-consuming, physically demanding, mentally exhausting job.

Congress did not create circuit judgeships — not courts, judgeships — until 1869. That’s the same year it set the high court’s size at nine justices. No less a liberal icon than Justice Ruth Bader Ginsburg — who just might have known a tad more than Jerry Nadler about how the Court works — believed nine was just the right number.

Prior to 1869, the size of the Supreme Court bench had varied, from as many as ten justices to as few as five. The numbers were driven by politics, not a perceived need to correlate to the number of circuits.

Yes, when Congress set the number at nine, there were also nine circuits. But that was because Supreme Court justices were still riding circuit. That practice was largely phased out with the Evarts Act of 1891, which established the U.S. circuit courts of appeal. It was completely ended in 1911, when Congress abolished the circuits, transferring their jurisdiction to the district courts.

That is to say, the circuit system that Democrats claim calls for an overdue expansion of the Supreme Court has not existed for more than a century. And when Congress created the system we’ve now had for a very long time, lawmakers concluded, much as Justice Ginsburg concluded, that nine was just the right number of Supreme Court justices.

The woke Left’s circuit-court argument is no more sincere than its laugh-out-loud “balance” argument. If the complaint is that the Court now has a 6–3 conservative majority, why would “balance” require adding four progressives?

But Jerry & Co. were on a roll. The unbalanced conservative majority has ushered in the era of dark, icky corporate campaign money! Yes, that would be the era whose most recent campaign has given Democrats control of the White House and both houses of Congress. The conservative majority is the grossly illegitimate handiwork of, yes, Donald Trump, who also “packed” the lower federal courts. Right. The Court “packing” (a.k.a. filling vacancies) worked so well for Trump that these cat’s-paw jurists rejected each and every one of his challenges to the 2020 election — ensuring Democratic control of Washington, including two years of conveyor-belt judicial confirmations of young progressive firebrands.

The only authentic part of Thursday’s performance came when a reporter asked Nadler why Speaker Nancy Pelosi had not committed to taking up the progs’ Court-expansion proposal. The Judiciary Committee chairman replied that the speaker is wisely monitoring how things develop over the coming months. Right . . . just like Biden’s similar theater, the “Presidential Commission on the Supreme Court.” Just like Obama’s 2012 warning that the justices had better not invalidate Obamacare. (Mission accomplished!) And just like the “amici curiae” brief that Democratic senators filed with the high court in a 2019 gun case — the kind of “friends of the court” whose advice is, “Nice place you have here, it’d sure be a shame if anything happened to it . . .”

Democrats are not really going to expand the Supreme Court. They are going to extort the Supreme Court.

What’s today’s favorite conservative talking point in Washington? “Court-packing is so beyond the pale that even FDR couldn’t get it done at the height of his power, with far bigger congressional majorities than Joe Biden will ever have.” Well, as Paul Harvey used to say, there’s a “rest of the story” that we prefer to forget: Court-packing was actually a smashing success as a threat. The Supreme Court felt FDR’s heat and changed its jurisprudence. As progressives browbeat conservative justices and gradually filled vacancies with liberals, the Court abandoned its defense of the Constitution’s limits on federal government power, laying the groundwork for the imperial presidency, a Congress that concedes no boundaries, and the administrative state.

Do the Democrats really have their eyes on four Supreme Court seats? Yeah, I suppose they do. You can call those seats Roberts, Gorsuch, Kavanaugh, and Barrett.

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. @AndrewCMcCarthy

https://www.nationalreview.com/2021/04/the-supreme-thuggery-of-democrats-court-packing-scheme/