Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court

Below is my column in The Hill newspaper on the range of options referenced by Vice President Joe Biden in the last debate that may be considered by his new “commission” for reforming the Supreme Court.  It is worth looking at the parade of horribles proposed by academics for changing the Court to legislatively negate the majority of conservative justices after the addition of Amy Coney Barrett to the Court (as early as today). The concern is that this is little beyond enablement by commission as Democrats claim license to do lasting harm to one of the most important institutions in our constitutional system.

Here is the column:

The vote on Monday to make Judge Amy Coney Barrett the 115th Supreme Court justice will be more than a confirmation. It will be a dispensation, according to former Vice President Joe Biden and various Democratic senators. They have cited the vote as relieving them of any guilt in fundamentally changing the court to manufacture a liberal majority. Like school kids daring others to step over a line as an excuse to fight, Democrats insist that filling this vacancy will invite changes ranging from “packing” the court to stripping it of authority to rule in certain cases.

The problem is that the line the Senate will step over is set by the Constitution, while the proposals by Democrats would retaliate against the use of a power granted by the Constitution. Democrats are floating a parade of horribles to “reform” the Supreme Court and negate its growing conservative majority. Biden said this week that the court is “out of whack” and, as president, he would assemble a commission of “experts” to explore “a number of alternatives that go well beyond packing.” The commission would report to him 180 days after his inauguration.

Polls show almost 60 percent of Americans oppose the court packing scheme supported by Democrats, including Biden’s running mate, Senator Kamala Harris. One person not polled was the late Justice Ruth Bader Ginsburg, who denounced such a scheme as guaranteeing the court’s destruction.

A New York Times and Siena College poll found only 31 percent favor court packing. That is a familiar figure: For the last four years, the same 30 percent of both parties have supported the most destructive political measures and rhetoric. Those extremes continue to control our politics, while the vast majority of us in the middle watch in disbelief as virtually every Democratic senator embraces one of the most reviled tactics in American history. Those senators are not alone. A host of professors (who likely will be on the short list for Biden’s commission) are giving credibility to court packing.

Harvard professor Michael Klarman attacked the foundations of Congress before attacking the foundations of the court. Klarman condemned a “malapportionment” in the Senate that he believes gives Republicans greater power, and referred to their refusal to vote on Obama court nominee Merrick Garland as “stealing a seat.” While controversial (and I was among those calling for a vote on Garland), that decision was clearly constitutional. Yet Klarman illogically calls it “court packing” to justify any act of retaliation: “Democrats are not initiating this spiral. They are simply responding in kind.”

He then says not to worry about Republicans responding with their own court packing when they return to power. He insists Democrats can change the system to guarantee Republicans “will never win another election,” at least not without abandoning their values. Of course, Klarman concedes “the Supreme Court could strike down everything I just described” so the court must be packed in advance to allow these changes to occur. Here are some of the other wacky ideas to get the court back into “whack.”

Jurisdiction stripping

Several professors argue for a court packing alternative that moves to the opposite approach: If you cannot make the court bigger, then shrink its authority. By using “jurisdiction stripping,” Democrats would bar federal courts from reviewing certain types of legislation. So, faced with a conservative court, a Democratic Congress would make the courts into a nullity to give itself unchecked authority in various areas. Assuming courts would allow such a move, it would create a race to the bottom as more and more legislation was protected from judicial review.

Supermajority voting

Another approach is to leave the Supreme Court at its current size but effectively “pack” the vote by requiring supermajority decisions. A Democratic Congress would enhance the votes of the court’s minority by requiring a two-thirds vote or even unanimity for certain types of cases or laws. It is an ironic idea since, against the advice of many, Democrats got rid of the Senate filibuster for judicial nominations when it held the majority — fundamentally changing longtime protections for a Senate minority. In this case, Democrats would designate favored areas or types of cases protected by supermajority rules, thereby manipulating the court’s votes.

Balanced bench

Pete Buttigieg and some academics have proposed disregarding any pretense of nonpartisan justices. They would convert the court into a kind of judicial Federal Communications Commission, with Democrats and Republicans each picking five justices who would then pick five more from federal appeals courts to serve terms of one year. That would make the Supreme Court a crude reflection of our dysfunctional political times.

Notably, the Supreme Court is reviewing such a partisan court system in Carney versus Adams. The case must be familiar to Biden, since it deals with a moronic Delaware constitutional requirement that the five seats on the state’s Supreme Court be divided between Democrats and Republicans — preventing an independent from becoming a justice. In Delaware, a “balanced court” apparently means you must first establish that you are from the right party before you can mete out justice The proposal would have a continually shifting court and, since the five transient justices would be selected based on party affiliation, they likely would become pawns in a partisan calculation.

Another proposal would “solve” the “problem” of a conservative majority by literally turning every judge into an associate justice. A lottery would be held every two weeks to randomly select nine justices to hear cases, with each panel limited to no more than five judges nominated by a president of the same political party. Senator Bernie Sanders actually endorsed this looney idea. It is akin to the character “Syndrome” in “The Incredibles” explaining he would give everyone superpowers because “when everyone’s super … no one will be.” Most Americans are unlikely to want to replace today’s court with a law by lottery approach.

As someone who proposed expanding the Supreme Court decades ago, I am not opposed to reform. However, Biden’s proposed commission is not about reform. It is about packing, stacking, and stripping schemes to achieve political outcomes on the Supreme Court. Biden is offering up the institution to the 30 percent demanding extreme measures to satiate their anger. Biden once denounced court packing as a “bone headed idea” — but he may now appoint a commission to convert a variety of bone headed ideas into bona fide proposals.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

197 thoughts on “Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court”

  1. I expect this to die after the election. The Democrats are angry and I certainly understand. They lost three seats they think should be theirs to nominate because they lost an election they thought they should have won. The problem is that there is history here and the Democrats shot themselves in the foot. It was the venerable Democrat Harry Reid that got rid of the filibuster that could have prevented this in the first place. He changed the rules and then the whip changed hands and memories ran long….

  2. ‘Joe Biden has been the most dangerous kind of racist his whole life: innuendoes, jokes, winks and nods. His treatment of Justice Clarence Thomas was indeed a “high tech lynching.” To see Justice Thomas swear in Justice Amy Coney Barrett last night brought tears of joy to my eyes.’ @realjameswoods


    ‘In 1991, Joe Biden made Clarence Thomas’s confirmation hearing a nightmare.

    Last night, Justice Thomas swore in Amy Coney Barrett to the Supreme Court.’

    Justice!’ @Jim_Jordan

  3. The solution to this is for Congress to PASS BETTER LAWS. Work together for Pete’s sake. There are areas of agreement, such as with the stimulus package. Concentrate on passing laws that both parties can agree to because this will encourage working together on the more challenging stuff. I’m so sick of the political games. Most of Congress should be voted out, including the newer ones who are partisan simpletons without any understanding of economics or business. Congress should quit counting on the Supreme Court to make their laws.

  4. Joe Biden is clearly not up to the job. This is why they do not want us to see more of Joe. This is why Joe Biden is hiding at home instead of out campaigning in the final week of a presidential campaign.

    1. Take 2 minutes and watch this. Seriously LOL. Also kind of sad. And scary. Besides an angry, old man shouting at us, there are Pumpkins and hay bales too.

    2. Wow Anonymous, I couldn’t even bring myself to watch the whole thing. This is disturbing. It is particularly painful to watch for those of us who have seen loved ones sink into dementia.

    3. Doofous, video manipulation is a practiced art now and anyone believing them may be suffering from dementia.

      Biden kicked Trump’s a.s in the last debate and armed with facts, not the lies Trump spouts non-stop. You can take that as proof of who’s demented.

      “In their final debate, President Trump unleashed an unrelenting series of false, misleading and exaggerated statements as he sought to distort former Vice President Joseph R. Biden Jr.’s record and positions and boost his own re-election hopes. The president once again relied heavily on well-worn talking points that have long been shown to be false.

      The president appeared determined to reinvent the reality of the last four years — and the history of the pandemic in 2020 — as he faces judgment on his actions in just 12 days. He once again falsely dismissed the Russia investigations as a “phony witch hunt.” He insisted that aside from Abraham Lincoln, “nobody has done more for the Black community,” an assertion that people in both parties find laughable. And he tried again to wish away the pandemic, saying “we are rounding the turn” even as daily cases of the virus this week topped 70,000 in the United States for the first time since July.

      The clash between Mr. Biden and Mr. Trump was contentious but more well-behaved than their first debate, with fewer interruptions. Mr. Biden made false statements, too: He falsely accused Mr. Trump of having “caused the deficit with China to go up,” and he exaggerated when he suggested that “red states” in the Midwest were having spikes in the virus. But Mr. Trump relied more on questionable and specious arguments about Mr. Biden’s family, Democratic policy positions and his own record, leading Mr. Biden to repeatedly express exasperation by saying, “C’mon, man!”…”

      1. Trump did very well. The NYT can write their articles without ever seeing the debate. They know in advance what they want to say and say it no matter what happened.

        Take just one issue, fracking. Joe Biden has been all over the place. Just look at the videos.

        Anyone relying on the NYT is poorly informed.

  5. “Thanks to all of you who encouraged me to consider filibuster reform. It had to be done.”

    · Nov 21, 2013

  6. Where were you, Professor, when this republican cabal prevented Obama from nominating his candidate? And how do you define “packing?”

    1. “Dems’ victimhood narrative is false. They feel entitled to power. But they lost the relevant elections for three constructive cycles. No rules were violated, the constitution was followed & norms were maintained—including new standards imposed by Dems in previous power grabs.

      And don’t counter with ‘Merrick Garland.’ That withholding of Senate consent aligned w/ the clear historical norm under divided power in a presidential election year. Tonight’s confirmation vote does the same, under united control of the WH & Senate.” @guypbenson

      1. No doubt when Dems control all 3 branches and move to expand the court along the lines of what Turley recommended (19 member court) Repubs will be out of their minds about it. Turley will disown his idea, because — after all — he thought of it as a ‘remedy’ against previous Dem control.

        My guess is the stealing of this seat, and the stealing of the seat before it will so delegitimize the court that active measures will be undertaken to mothball the place.

        1. All Democrats have is threats. no substance. no intellectual discourse. No worthy contribution.

          Brown shirts by no other name. What Democrats have hated is that Republicans like Trump have chosen to use their tactics. When Trump wins in November, and Republicans pick up seats in the Senate and control the US House, expect Democrats to be the ANTIFA BLM Rioters they are at their very core. You asked for it. You will be sorry and no one will care

    2. Just think what could have happened if the Democrats had convinced the nation that the Senate should be controlled by the Democrats. They had their chance to gain control. They lost elections and then cry and moan because they were opposed by the other party. The people of the nation by their vote did note give them the power to add a Supreme Court Justice.

  7. Barrett Shall Represent Trump’s America; A Failed Regime Entering Its Last Days

    Justice Amy Coney Barrett joins a court dangerously out of sync with the country. The nation is roughly evenly divided politically and has been for decades. Yet the court — now even more so with Barrett’s arrival — is dominated not only by Republican-appointed justices but also by muscularly conservative ones.

    The last time the court had a majority of justices nominated by a Democratic president was in 1969, when Abe Fortas resigned. In the years since, Republican presidents have named 15 of 19 justices. That’s right, Democrats have had only four nominees confirmed in the past half-century.

    It would be one thing is this were a reflection of Republican electoral dominance. It’s not. During that time, Democrats have won five of 12 presidential elections, and a plurality or majority of the popular vote in two more.

    Part of this lopsidedness reflects the luck of the presidential draw — Richard M. Nixon had four appointments, Jimmy Carter none — or bad retirement timing on the part of justices.

    And partly it is a consequence of the impact of the electoral college. Consider: There are now six Republican-nominated justices on the high court, yet during the tenure of every sitting justice, a Republican president has won the popular vote just once — George W. Bush in 2004.

    The Senate has its own version of this phenomenon. Since the Fortas retirement in 1969, Democrats have controlled the Senate in more than half of the 26 Congresses. But as with the electoral college, the Senate’s structure, giving every state two senators no matter its size, exacerbates the inequities.

    Senators representing significant majorities of the population voted to reject the three Supreme Court nominations made by President Trump, who himself received nearly 3 million fewer votes than his opponent. This is minority rule piled on minority rule, albeit counter-majoritarian rules enshrined in the constitution.

    The numbers only tell part of the story. During a less partisan era, and in particular during an era when ideological considerations played a less decisive role in selecting Supreme Court justices, the fact of significantly greater numbers of Republican- than Democratic-appointed justices mattered far less.

    After all, two of the liberal leaders of the Warren court, Earl Warren himself and William J. Brennan Jr., were named by Republican Dwight D. Eisenhower. Other Republican presidents have found themselves disappointed by their nominees’ liberal tendencies on the court, including Nixon (Harry A. Blackmun), Gerald Ford (John Paul Stevens), Ronald Reagan (Sandra Day O’Connor and Anthony M. Kennedy), and George H.W. Bush (David Souter).

    But the era of justices who surprise is over. The conservative legal movement learned from its mistakes; its rallying cry has been, “No more Souters.” It created an ideological and financial architecture to identify and groom promising candidates, and to give them enough seasoning on the bench to ensure that nominees’ legal philosophies were reliably conservative. The elimination of the filibuster for Supreme Court nominees, with the confirmation of Neil M. Gorsuch in 2017, removed any incentive toward moderation.

    The court serves an important counter-majoritarian role in preserving constitutional protections; we don’t want it to slavishly follow the election returns. But neither is it good for the court to be sharply out of step with the national consensus. That’s bad for the institution and bad for the country.

    Edited From: “Amy Coney Barrett Joins A Supreme Court That’s Largely Out Of Step With National Consensus”

    The Washington Post, 10/26/20


      After all, two of the liberal leaders of the Warren court, Earl Warren himself and William J. Brennan Jr., were named by Republican Dwight D. Eisenhower. Other Republican presidents have found themselves disappointed by their nominees’ liberal tendencies on the court, including Nixon (Harry A. Blackmun), Gerald Ford (John Paul Stevens), Ronald Reagan (Sandra Day O’Connor and Anthony M. Kennedy), and George H.W. Bush (David Souter).

      All these justices were appointed by Republican presidents. Yet they all became disappointments to conservatives. Hence The Federalist Society.

      Federalist groomed lawyers have been thoroughly vetted for idealogical purity. They won’t go soft with a lifetime appointment! To the contrary Federalists remain rigidly conservative despite public sentiment. They’ll have Mitch McConnell’s ability to say “No”. Like “No abortion or gun control”. “No safety nets”. “No regulations for banks or polluters.

    2. If “being out of step with the national consensus” means following the Constitution and laws as written I am all for it. Maybe congress needs better lawyers to write those laws. If you don’t like a decision, make a better law.

  8. Madame Justice Barrett will be sworn in in the next few days. Hoping for the best. She, Kavanaugh, Alito, and Thomas are in grave danger from the James T. Hodgkinson wing of the Democratic Party, sans doute. Prayers.

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