The Court-Packing Coup
In December 2021, Joe Biden’s Presidential Commission on the Supreme Court released its Draft Final Report, running over 200 pages, to no fanfare....
The report’s true purpose will become apparent if... it is one day publicly cited by Joe Biden or by a future Democratic president. We will then understand that, under a false veneer of detached scholarship, Biden’s Commission has quietly laid down the legal-theoretical groundwork for a totalitarian regime in which progressives would be empowered to repress their enemies unencumbered by the rule of law....
The Supreme Court plays a frequent and critical role in protecting Americans’ fundamental rights from the elected branches. Conservatives simply tend not to hear about the cases that we win....
In the Heller and McDonald cases, the Supreme Court held that the Second Amendment protects individual firearms ownership. If these cases had differed by one vote, the Second Amendment would already be unenforceable in any U.S. court. Barack Obama could have begun an incremental program of nationwide gun confiscation during the 111th Congress....
... the entire structure of the Constitution assumes that the Court is an independent branch—not a mere tool of the party that has majoritarian control at any given moment....
It should go without saying that, if the Supreme Court is placed under absolute subjection to the momentary whims of the ruling party, it would cease to exist as a distinct third branch of government. Instead of a three-part government, we would have a binary government: an entirely different system than the one the states agreed to when they ratified the Constitution...
What are our options for stopping Court-packing? I will suggest two. The first is the simplest: ordinary Americans make as much noise about Court-packing as possible. If Court-packing is denounced loudly and often enough that most Americans grasp its significance, then its primary attraction to progressives—that most Americans might not perceive it for what it is—will be taken away. Progressives may then back down in favor of a less dangerous strategy.
Pressure alone, however, may not stop Court-packing. We must immediately begin preparing for a second option. If Democrats proceed with Court-packing, a significant group of states must file suit in the Supreme Court to seek an injunction blocking the expansion of the Court and the seating of any new justices...
... when the states ratified the Constitution, they agreed to be subject only to the form of government it creates: a three-part government with certain powers reserved for the judicial branch. They did not assent to a binary government in which the judiciary can be arbitrarily remade at any given moment....