On Court-Packing, Joe Biden Has Become Exactly What He Once Denounced

By Charles C. W. Cooke

Tuesday, July 30, 2024

 

At The Dispatch, Adam White makes a key point about the Biden-Harris administration’s execrable Court-packing plan. Having noted that he has “studied these issues for two decades, most recently as a member of the Presidential Commission on the Supreme Court of the United States, to which the president appointed me in 2021,” White concludes that:

 

The name gives it away, of course. They call it “term limits,” not “active-status limits,” precisely because the point is to end the justice’s term as a real “justice” as the office as been understood for more than two centuries.

 

And it is just court-packing by another name. If anything, the new proposals for disempowering “senior” justices are even more aggressive than the original version of court-packing: FDR tried to add new justices, but he never even attempted to nullify current justices.

 

Indeed.

 

Prior to becoming president, Joe Biden was emphatic in his criticism of FDR’s plan. He said that it was “a bonehead idea.” He said that “power corrupts.” He said that it was

 

a terrible, terrible mistake to make, and it put in question for an entire decade the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America.

 

He said that it was an “institutional power grab.” He said that it was an “effort to punish the Justices” and

 

that executive branch attempts to dominate the judiciary lead inevitably to an autocratic dominance, the very thing against which the American colonies revolted, and to prevent which the constitution was in every particular, framed.

 

Furthermore, Biden said that the Senate was right to have “stood firm” against Roosevelt in 1937. He said that the Senate’s rejection of the plan represented “an act of great courage” that served “to preserve our system’s checks and balances.”

 

And, no, Biden did not think that the situation back then was “different” from the one he is (falsely) describing now. Here’s how Biden characterized the members of FDR’s own party who rejected the plan:

 

They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism.

 

Here’s how Biden described the motivations of those who rejected it:

 

In the end, Roosevelt’s plan failed because Democrats in Congress thought Court packing was dangerous, even if they would have supported the newly constituted Court’s rulings.

 

Biden concluded:

 

And they did so not to thwart the agenda of the president, which, in fact, many agreed with; they did it to preserve our system’s checks and balances; they did it to ensure the integrity of the system. When the founders created a different kind of legislative body in the Senate, they envisioned a bulwark against unilateral power.

 

In 2005, Biden summarized the Democrats’ rejection of FDR’s plan as “a stinging rebuke.” And so it was. Despite three-quarters of its members belonging to the same political party as FDR, Congress could not have been clearer in its repudiation:

 

In the House, Democrats lined up to denounce the president. The Chair of the House Rules Committee described the plan as “the most terrible threat to constitutional government that has arisen in the entire history of the country,” while Joseph O’Mahoney, an enthusiastic and partisan New Dealer, told a friend that it “smells of Machiavelli and Machiavelli stinks.” The Senate Judiciary Committee was even more blunt. Roosevelt’s proposal, it wrote, “violates every sacred tradition of American democracy,” corrupts “all precedents in the history of our government,” runs “in direct violation of the spirit of the American Constitution,” represents “an invasion of judicial power such as has never before been attempted in this country,” and, if enacted, would serve to “make this government one of men rather than one of law.” “It is a measure,” the report concluded, “which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

 

Alas, 87 years later, its parallel has once again been proposed. What a disgrace it is that the architect of that proposition has become what he once denounced.