A few years ago, a C-SPAN poll found more than half of likely American voters could not name a single U.S. Supreme Court justice.
That was a somewhat alarming statistic and came at the height of pop culture’s efforts to lionize now-deceased Associate Justice Ruth Bader Ginsburg.
The lesson is although the high court is a co-equal branch of government, it is not something that directly impacts Americans daily. It is mostly out of sight and therefore out of mind.
Still, the composition of the Supreme Court has become a hot-button political issue as of late, given Donald Trump had three of the coveted nominations, which at least on paper has shifted the balance of the court.
Throughout the 2020 campaign, Republicans warned if Democrats got the House, Senate and White House, it was over. All the gains made by Trump, including on the court, would be erased by Democrats.
The filibuster was done. Puerto Rico and the District of Columbia would become states. Democrat majorities would rule until the end of time.
Biden’s first hundred days have not been that ambitious.
While their guy is in the White House at 1600 Pennsylvania Avenue and they control business on Capitol Hill, Joe Biden has not executed with precision-like quality. The slim margins in the House and the Senate have made business move at a slower pace.
At some point, Democrats realized the U.S. flag was probably not going to have 52 stars anytime soon, nor would they succeed in turning the U.S. Supreme Court into a left-leaning mini-legislative body.
So, what could they do about the Supreme Court? The rabid left wing of the Democratic Party will not sit idly by and go along with hearing, “Let’s try again in four years.”
Senator Ed Markey, R-Mass., and House Judiciary Chairman Rep. Jerry Nadler, D-N.Y., rolled out their version of an effort to expand the high court, and perhaps they took a page out of former President Franklin Delano Roosevelt’s playbook.
In the 1930s, the Supreme Court overturned a handful of laws passed by Congress supported by FDR under his New Deal plan. At the time, the conservative wing of the court rejected the use of the interstate commerce clause to justify the expansion of the role of the federal government.
A series of defeats by the Supreme Court led by then-Chief Justice Charles Evans Hughes resulted in FDR’s Judicial Procedures Reform Bill of 1937, referred to as “court-packing.”
The effort to pack the court ultimately petered out in Congress. However, it was not long after FDR’s rollout that there was a sudden shift by then-Associate Justice Owen Roberts with his rulings.
That flipped the Hughes court in Roosevelt’s favor.
Humorist Cal Tinney coined the shift as “the switch in time that saved nine.”
Eighty-four years later, we still operate with nine justices on the Supreme Court — but we won’t if Markey and Nadler have their way.
But might a hypersensitive right-leaning justice see this as a warning from Democrats? In other words, “You better not even think about overturning Roe v. Wade or knocking down any of the laws this Democrat-controlled Congress passes, or you will have four new colleagues on the high bench!”
Chief Justice John Roberts often appears to be sensitive to politics. He has been the swing vote on several occasions, most notably the 2012 National Federation of Independent Business v. Sebelius ruling that upheld the Affordable Care Act as constitutional.
More recently, Roberts was reportedly very reluctant to involve the Supreme Court in challenges to the 2020 presidential election in a suit brought by a handful of states claiming Pennsylvania and other states’ handling of the election tallies violated the electors, the equal protection and the due process clauses of the Constitution.
The court declined to hear the case on the grounds Texas did not have standing. Some speculated Roberts and the liberal justices did not want to have the matter taken up, fearful of the potential for riots.
Whether or not that is the case, there have been mental gymnastics on display for Roberts to reach his conclusion in some of his rulings as of late.
Perhaps Markey, Nadler and other pro-court-packing Democrats recognized this. They realize success in court-packing would be a long shot, but why not send a chill through the Supreme Court? Why not make those nine justices think twice before issuing any broad sweeping rulings that would change how the federal government handles hot-button issues?
Trump’s Gorsuch, Kavanaugh and Barrett nominations created a panic by the left. But significant changes in long-established jurisprudence do not come about as easily as some Democrats make them out to be.
The real threat to the Democratic Party’s agenda with these new justices is the Supreme Court is no longer a means to institute so-called progressive change. But just in case they thought about striking down Obamacare or something else treasured by liberals, Democrats, including Markey and Nadler, want the justices to know they are not powerless against a right-leaning court.
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