In a 288-page report as long and detailed as any Supreme Court ruling, a 34-member, bipartisan presidential commission couldn’t reach consensus on whether the nation’s highest judicial panel should grow from nine, where it’s been since 1869, to some larger number. It should’ve been easy, especially for a panel so large, to grasp: Of course having a president pack the court won’t solve any of its underlying problems.
To the contrary, letting the chief executive enlarge the bench that issues the final word on constitutional law and statutory interpretation would snap the final, frayed thread of credibility by which the court now hangs, forcing presidents of each party to retaliate with new lifetime appointments of their own. No doubt, Republicans have been primarily responsible for politicizing the court — but a move by President Biden to add new liberals now would be like deploying a hydrogen bomb in a fission nuclear war.
Three decisions by presidents and Senate majority leaders have produced the court’s current six-to-three conservative supermajority, one likely to overrule Roe v. Wade and embrace a radical interpretation of the Second Amendment that nullifies life-saving gun safety laws. Most devious was Mitch McConnell’s 2016 refusal to give President Obama’s moderate pick of Judge Merrick Garland a hearing after Antonin Scalia’s death early that year. That was followed by the installation of Neil Gorsuch in the seat, capped off by the mad rush to approve President Trump’s nominee, Amy Coney Barrett, following the late 2020 death of Ruth Bader Ginsburg.
It may pain Democrats to refuse to go deeper down the route of politicizing the court, but someone has to be the relative grownup if one of the nation’s most important institutions has any hope of surviving a dangerously divisive moment. Generous term limits for justices would help balance the court ideologically rather than incentivizing the appointment of young zealots and leaving so much to when a lifetime appointee happens to die. Don’t pack a court on the brink; find a way to bring it back.
