Can Prudence and the Constitution Prevail in the Face of Court Packing?

These are dark and dangerous days for the rule of law. That we are a government of laws, and not of men, was once the proudest assertion our politicians could make—but no more. The latest travesty in this regard is the Biden Administration’s clear desire to “pack” the Supreme Court by increasing the number of justices so that President Biden can nominate and the now Democrat-controlled Senate can confirm a raft of Democrat nominees, in order to create a majority of progressive justices on the bench. Such a majority could be depended upon (since Democratic nominees tend to vote in lockstep on issues such as the power of Congress) to uphold the constitutionality of the transformative efforts of the Biden Administration. 

One of our most astute law professorial critics, David Bernstein of George Mason Law School, published a splendid book showing that the Obama Administration was the most “lawless” in American history—based on the fact that its actions were often challenged in court and reversed. But if court packing is now successful, that problem of lawless actions being overturned by courts will be eliminated, and quite possibly nothing will stand in the way of the progressive and transformative triumph that eluded Obama.

The Progressive vision, which flowered in the 19th- and early-20th centuries, culminating with FDR, was that the nation’s problems had grown too great for state governments to handle, and what was needed was a cadre of trained technocrats, who could brush aside the archaic structure of the original Constitution (which gave us a federal government of limited and enumerated powers), and through the bureaucracy of new federal agencies, could bring a better life to Americans from cradle to grave.

In some ways this was a noble vision, but it was not that of the founders. The Progressive ideal substituted security for liberty, and had the tendency to obliterate the rights of property in favor of redistribution and equity. 

The election of Donald Trump in 2016 represented for many Americans (and some few of us in the academy) the reassertion of the view of the framers, and the last chance to maintain the original understanding of the Constitution. President Trump’s appointment to the court of three originalists, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, which will represent his lasting legacy, was his most prominent act in preserving and securing the vision of the framers.

That is now threatened, as the new creation of a “commission” to study court packing has been put forward by Biden. The men and women on this commission are all prominent Constitutional and legal scholars, from some of the nation’s greatest law schools and universities. They are all, most likely, persons of good will. One of them, Keith Whittington of Princeton, is one of our most gifted constitutional theorists. Missing from the list, however, are many (or perhaps any) advocates of the founders’ original understanding, conservatives who would be wary of the increased politicization of the court.

It is very likely a foregone conclusion, then, that this commission will pave the way (perhaps with a very few dissenting voices) for court packing. The commission is likely to take the Progressive position, now dominant in the universities and the law schools, that the Supreme Court ought to bow to the pressures of politics, and that, as the theorists of critical legal studies, once put it, all law is politics. In other words, according to this view, the rule of law is a myth, and, when all is said and done, that myth actually conceals what Oliver Wendell Holmes, Jr. told us in 1881, that the judicial task is actually legislative in nature.

That Holmesian view came to be known as “legal realism,” and swept the law schools in the period from 1930 to about 1980, until it began to be succeeded by its more radical and Marxist-influenced variant, critical legal studies. (And, incidentally, it was critical legal studies that gave birth to critical race theory, which has now permeated virtually all institutions of America, with its questionable claim that American society is riddled with “systemic racism,” which claim itself would justify radical reform).

It is no surprise, then, that Biden’s commission is likely to be almost exclusively of the view that a conservative majority on the Supreme Court would represent an ongoing danger to the republic, and that the remedy is an infusion of progressive jurists. As I tried to show in my recent book on law professors, there is now no escaping the dominance of this view in the legal academy, and that dominance is itself a profound threat to our tradition that law ought to be more than politics. 

It is surely significant that the court’s most prominent liberal justice, Stephen Breyer, has very recently come out against court packing, as earlier did Ruth Bader Ginsburg, and as has Senate Minority Leader Mitch McConnell (R-Ky.). When FDR tried his similar maneuver in the 1930s public clamor and a reluctant Congress defeated it. It must be acknowledged, however, that there is nothing unconstitutional about court packing, since the Constitution gives Congress plenary power to set the number of justices. Nevertheless, it is a supremely imprudent policy to make the court more political, and it ought to be resisted. 

That resistance is unlikely to come from Democrats in Congress, although, conceivably, this may be an issue on which some few Democratic senators, such as Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, would side with the Republicans. Sadly, given the dominance of progressive views in the law schools, few law professors are likely now to endorse originalism, prudence and the rule of law.


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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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