FDR Bent A Reactionary Supreme Court To His Will-- Anyone Think Biden Can?

The certiorari system, where the Supreme Court decides what cases to take, was set up in 1925. In 1940, it took around 20% of the cases. Now, if you want the Supreme Court to hear your case, you might as well be playing Powerball. That's one reason why Alan Grayson-- a law clerk for both Ruth Bader Ginsburg and Antonin Scalia before being elected to Congress-- loves the idea of expanding the Supreme Court. Yesterday, he told that "When you consider that the Supreme Court doesn’t even hear 98% to 99% of the cases that it’s asked to decide, that doesn’t seem like enough, even if the GOP hadn’t been packing the courts relentlessly for the past 50 years, since the time of Lewis Powell."

Around the same time, Mondaire Jones told me her had a different reason for introducing a bill to expand the Supreme Court from 9 members to 13. "Our democracy is hanging by a thread," he said. "And the far-right majority on the U.S. Supreme Court is cutting it. From Citizens United to Shelby County to Rucho, the Court has been hostile to democracy itself. The majority’s doctrine is clear: if a law suppresses the right to vote, it is constitutional; if a law protects the right to vote, especially for Black and brown voters, it is unconstitutional. The American people have had enough. To restore power to the people, we must expand the Supreme Court. I am proud to introduce the Judiciary Act of 2021 to do just that."

Later this morning Jones will be joined by House Judiciary Chairman Jerry Nadler, Chairman of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet Hank Johnson and Senator Ed Markey in introducing legislation to expand the Court.

On Tuesday, The Nation published a piece by Elie Mystal, Biden’s Supreme Court Commission Is Designed to Fail, contending that his "recently announced commission to study court reform isn’t designed to offer solutions-- it’s designed to be an excuse to do nothing."

Mystal wrote that she "can distill the Democrats’ decades-long failure to control the Supreme Court into a single concept: Republicans use the nation’s highest court to reward their hard-core voting base; Democrats use it to pacify their moderates. The staunch refusal of establishment Democrats to offer anything more than a token defense of their voters through the court is the reason Democrats are always fighting an asymmetrical war over the third branch of government-- and always losing. The latest Democratic Party failure is Joe Biden’s Presidential Commission on the Supreme Court. Last week, in fulfillment of his campaign promise, Biden announced the composition of an 180-day commission to study expanding the court. Biden’s choices confirm the worst fears court reformers had about the president: He doesn’t want a solution; he wants an excuse to do nothing. Democrats have the factual, moral, and political authority to expand and rebalance the Supreme Court. Factually, the number of justices has been changed many times in the past and doing this is the most unambiguously constitutional avenue for court reform. Morally, Republicans lost the right to object some time between stealing a Supreme Court seat from Barack Obama during an election year and then rushing to replace Ruth Bader Ginsburg (may her memory be a blessing) after an election had already started. And politically, these acts of Republican manipulation have finally alerted Democratic voters of the importance of translating electoral victories into control of the unelected branch of government. There simply hasn’t been a moment more ripe for court reform since the end of the Civil War-- which happens to be the last time we changed the number of justices on the court."

A high-profile commission could have been a way to educate the public about court reform and put political pressure on moderate senators who would rather leave Black voters, women, and the LGBTQ community to fend for themselves against a reactionary conservative judiciary. A task force of advocates, each with independent constituencies and networks they could access to spread the gospel of court reform, might have been a useful thing. But it’s clear from this commission that Biden is not willing to spend a whole lot of political capital trying actually to secure the rights of the people who voted for him.

At this rate, Democrats will probably still be “studying” how to fix the Supreme Court in 2025, when a Republican president joins forces with Mitch McConnell to appoint and confirm a test tube filled with Antonin Scalia DNA to replace Stephen Breyer. Maybe by then Democrats will figure out that fighting for the Supreme Court is the only way to win it.

Not all Democrats. In an Op-Ed Andrew McCarthy, referred to Biden's commission as "court-packing theater," noting that FDR was faced with a reactionary Supreme Court that kept overturning the New Deal. FDR's landslide reelection in 1936-- 523 electoral votes to 8, Maine and Vermont the only states voting for Alf Landon-- plus the super-majorities the Democrats won in the House (334-88) and the Senate (74-17)-- was an effective shot across the bow of the SCOTUS reactionaries. "Roosevelt didn’t get his additional bench slots to fill," acknowledged McCarthy. "But that was not the main objective of the threat. FDR wanted his program. And he got it. The court-packing threat failed only as an ambitious artifice to alter the make-up of the judiciary. It succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry. As debate raged over the failed court-packing proposal, the court executed its 'switch in time that saved nine,' the notorious volte-face in which previously untenable regulatory regimes were suddenly green-lighted under the guise of promoting 'the health, safety, morals and welfare of the people'-- as the court put it in West Coast Hotel Company v. Parrish (1937)."

FDR was able to use the court-packing threat to pressure the high court to change course. Progressives will attempt to use Biden’s gambit to do the same thing.

This is a smart political play. In Chief Justice John Roberts, the court is led by a jurist who prizes the tribunal’s reputation as a nonpartisan institution over the imperative to reach correct results-- if those results will be condemned by the dogmatically progressive media-Democrat complex.

The court-packing rhetoric picked up steam in the 2020 campaign but it actually stretches back to 2017, when Republicans refused to confirm an Obama nominee, Judge Merrick Garland (now Biden’s attorney general), for the vacancy opened by Justice Antonin Scalia’s death. This enabled Trump to make the first of what became his three appointments to the high court.

These fraught confirmation battles have already influenced Chief Justice Roberts. He occasionally has joined with the court’s liberal bloc in big cases, other times used his power to assign opinions to ensure that potential conservative victories were as narrow as possible, and still other times influenced his court not to grant review of cases that presented controversial questions.

With the confirmation of Justice Amy Coney Barrett, Trump’s final appointee, the putative conservative majority is now stronger. This theoretically reduces Roberts’ influence-- shifting the court’s “swing” hinge from Roberts to the more reliably conservative Justice Brett Kavanaugh.

Still, the court’s emerging center is a trio formed by Roberts, Kavanaugh and Justice Elena Kagan, an Obama appointee. Throughout the Trump years, Justice Kagan played her minority hand deftly. Biden’s commission, and the continued saber-rattling about drastically “reforming” the judiciary, aims to strengthen her position, as Roberts and-- the left hopes-- Kavanaugh become increasingly cautious.

The Biden court-packing commission won’t alter the Supreme Court. But the progressive court-packing diatribes could tame the court’s conservative majority. It worked for FDR.

A high-profile commission could have been a way to educate the public about court reform and put political pressure on moderate senators who would rather leave Black voters, women, and the LGBTQ community to fend for themselves against a reactionary conservative judiciary. A task force of advocates, each with independent constituencies and networks they could access to spread the gospel of court reform, might have been a useful thing. But it’s clear from this commission that Biden is not willing to spend a whole lot of political capital trying actually to secure the rights of the people who voted for him.

At this rate, Democrats will probably still be “studying” how to fix the Supreme Court in 2025, when a Republican president joins forces with Mitch McConnell to appoint and confirm a test tube filled with Antonin Scalia DNA to replace Stephen Breyer. Maybe by then Democrats will figure out that fighting for the Supreme Court is the only way to win it.

And now a couple of grunts from legal scholar and traitor Señor Donald J Trumpanzee: