Is Court Packing Inevitable If Democrats Retake Congress and the White House?

After his election in 2020, President Joe Biden faced enormous pressure from progressive activists who wanted him to expand the U.S. Supreme Court by packing it with a supermajority of new liberal justices who would be ready, willing, and able to override the Court’s conservative majority.

Yet Biden consistently resisted such pressure. Why? Perhaps it was because Biden agreed with liberal Justice Ruth Bader Ginsburg, who said it “was a bad idea when President Franklin Roosevelt tried to pack the court” in 1937, and it would be an equally bad idea to try again. “If anything would make the Court look partisan,” Ginsburg said, “it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

Or perhaps it was because Biden agreed with liberal Justice Stephen Breyer, who similarly concluded that court packing would be a race to the bottom that erased whatever credibility and independence the Supreme Court had left, a result that Breyer believed would prove disastrous for liberals and Democrats in the long run. “Think long and hard,” Breyer warned the court-packers, “before embodying those changes in law.”

Whatever his reasons, Biden held firm in his anti-court-packing stance throughout his single term in office. “The last thing we need to do,” Biden said, “is turn the Supreme Court into just another political football, whoever’s got the most votes gets whatever they want.”

But what happens the next time around? Biden is gone, Ginsburg is dead, and Breyer is retired. Are there any younger liberal figures of comparable stature who would be willing to speak out against court packing if/when the Democrats regain control of Congress and the White House? Or is it only a matter of time before a new court-packing plan is introduced?

Court packing 2.0 may not be inevitable, but it does seem increasingly likely to come up for serious debate in a future Congress. One reason why is that the Supreme Court itself has become increasingly unpopular and distrusted. Indeed, according to a new Washington Post-Ipsos poll, “more than half of Americans disapprove of how the Supreme Court is doing its job, while 46 percent believe that the court is ruling on President Donald Trump’s policies based on ideology rather than the law.”

In other words, if enough people believe that the Court no longer has any credibility or independence left to lose, then those people won’t be persuaded by any Ginsburg-Breyer type of arguments against court packing. For Democratic politicians and the voters who elect them to office, that kind of fundamental distrust of the Supreme Court only seems to be gaining steam.

Did you see The Odyssey this weekend? I had the pleasure of enjoying it just as Homer intended: on a huge outdoor screen at one of America’s greatest drive-in movie theaters.

I have my quibbles with how writer-director Christoper Nolan tackled some of the material (Nolan-favorite Tom Hardy might have made a better Odysseus, in my opinion, than the too-wholesome Matt Damon), but I was thoroughly entertained by it and entirely recommend it to you if you haven’t yet seen it. It’s a great work of cinema.

And I must say that I particularly appreciated the film’s vilification of Agamemnon, who has always struck me as one of the true villains of the whole saga. Any father who would willingly sacrifice the life of his own daughter deserves to meet a terrible fate.

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