Tuesday, May 11, 2021
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Biden called packing the Supreme Court a ‘bonehead idea’ – now it’s his policy

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FOUR Democrats have introduced a Bill to expand the US Supreme Court from the present nine judges to 13. 

The last attempt at change failed in 1937, when Franklin D Roosevelt tried to add more justices to the court. His proposal was opposed by members of his own Democratic party, who considered it an abuse of power.

Describing FDR’s intention as ‘the most terrible threat to constitutional government that has arisen in the entire history of the country,’ the Democratic party called for it to ‘be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.’

How many Democrats today would be willing to take a similar stand against such abuse? Joe Biden did, in a previous life, describing FDR’s efforts as a ‘terrible, terrible mistake . . . a bonehead idea’.  How times and the man have changed.

The US Supreme Court is the highest tribunal for all cases and controversies arising under the Constitution or the laws of the United States. Its purpose is to give the American people the promise of ‘equal justice under law’ and it is both guardian and interpreter of the Constitution.

It has been suggested that the Supreme Court has strayed too far from its original legal purpose and that it is now the single most powerful force for cultural change in the country. According to Robert H Bork, former Solicitor General and distinguished constitutional scholar, it increasingly decides questions of politics and morality ‘that are strictly speaking none of its business’.

In his book Slouching Towards Gomorrah, Bork argues that Supreme Court Justices have been responsible for the expansion of ‘radical individualism’ and ‘radical egalitarianism’, their decisions siding more often with a Left-liberal, intellectual, globalist agenda than with the US Constitution.

In the space of a generation the Supreme Court has ruled, among other things, on the right to same-sex marriage, to produce and consume pornography, to burn the American flag, the right of universities to select students on grounds of race or colour rather than academic record, and the right to personal dignity and autonomy, which in some states has been interpreted to mean the right to assisted suicide.

These determinations and others have had a powerful impact on public attitudes and social behaviour, and have contaminated peoples across the globe. 

In adding four seats to the Court, the proposed ‘Judiciary Act of 2021’ would create vacancies that Biden would fill with his own people. Some Democrats are even urging Justice Breyer, the oldest sitting Justice at 82, and the last Clinton nominee, to resign and give Biden a fifth seat.

The push comes under cover of complaints about President Trump’s confirmation of Justice Amy Coney Barrett last year. Although the Republicans broke no rules or laws, Democrats are still bitter that the seat was not left open for the winner of the 2020 election.

Democrat pin-up Alexandria Ocasio-Cortez backs changes, telling the Washington Times: ‘I do think we should be expanding the court. The idea that nine people . . . can overturn laws that . . . hundreds and thousands of legislators, advocacy and policymakers drew consensus on . . .’

Ms Ocasio-Cortez seems unaware of the principle of judicial review enshrined in Marbury v Madison (1803) which has been part of the US constitutional framework for more than two centuries and a crucial component of the balance of power between the three branches of government.

Senate Republican Leader Mitch McConnell accused Democrats of showing ‘open disdain for judicial independence,’ and decried Biden for violating his vow to reduce political animosity. He called on him to ‘stop giving oxygen to a dangerous, antiquated idea and stand up to the partisans hawking it.’ 

House Minority Leader, Republican Kevin McCarthy, said Democrats are pushing a ‘plan to dismantle . . . government institution[s] in pursuit of their socialist agenda. Never in my time in politics did I ever believe they would go this far.’

The Democrats have suggested some ridiculous reasons for increasing the number of justices on the Court. They say that Republicans ‘packed’ the Court, which is untrue.

They suggest that numbers must be increased to keep up with population growth and workload increases. This makes no sense because all justices sit on all cases, so 13 will not be able to hear more cases than nine. Additionally, the Court’s docket is smaller than it was 50 years ago.

Finally, they claim that the Court is suffering a ‘crisis of legitimacy’, which is nothing short of slander.

So, what is the Democrats’ real goal? The party is becoming increasingly ‘more liberal and progressive’ and inevitably it will bump up against the Constitution itself. When that happens, it wants judges who are less interested in what the Constitution says and more sympathetic to what the party intends it to mean.

Before the advent of the Bill, Biden, through whom many of the party’s most radical ideas are now being laundered, had signed his 60th Executive Order creating a presidential commission to review the Supreme Court.

The White House said: ‘The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of reform proposals . . . it will examine . . . the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and . . . case selection, rules, and practices.’

These Democrats, just over three months in power, are showing that they intend taking absolute control of the legal system. There is only one way out. Constitutional Democrats must repeat their 1937 rejection and deny President Biden and those who manipulate him.

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Kate Dunlop
Kate Dunlop is a mediator.

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