President Joe Biden has issued a thinly veiled threat to Chief Justice John Roberts in the form of a new commission that will study Supreme Court reform. The threat is clear: if Roberts doesn’t limit the court’s conservative influence on key issues like abortion, gun rights and immigration, Democrats will pack the court.
In other words, “Nice court ya got there, it would be a shame if something happened to it.”
Liberal activists have been demanding the administration use its newfound power to seize control of the third branch of government, lest the final conservative foothold in Washington weaken Roe’s sweeping power, preserve the Second Amendment or uphold religious freedom. The commission, reported Wednesday on by Politico, is the administration’s formal acceptance and weaponization of those demands.
Still, the commission is only a threat, not an all-out declaration that Biden will pack the court. And the reason the threat was limited to a commission is likely that Democrats don’t have the votes to pack the Court — yet. The commission is the most formal and concrete action Biden can take right now to warn of a Supreme Court with thirteen justices.
The Biden administration attempted to give the commission on Supreme Court reform a veneer of bipartisanship and principles through including Jack Goldsmith, an assistant attorney general during the Bush administration, and directing talk towards “term limits,” “ethics” and “transparency.”
But the reality is that Biden’s commission is a clean handed way to advance the court-packing plot, an intimidation technique to erode the separation of powers between the judicial and executive branches in order to advance Democratic political power.
So far, the Democratic threat of court-packing is working, and brilliantly so.
Chief Justice Roberts has turned from deciding cases solely based on their merits to prioritizing a concern for the court’s institutional integrity.
When given the chance to hand back some power to the states on abortion in June Medical Services L.L.C. v. Russo — when liberal demands for a packed court were heating up — Roberts surrendered in favor of preserving convoluted precedent he had ruled against in 2016. June Medical Services could have provided a greater role for states in regulating abortion. Instead, Roberts chose to preserve the mistaken principle that women pursuing abortions should be free from any burden.
We can see the current Supreme Court’s fear of the Biden administration’s threats in their continual failure to grant certiorari on Dobbs v. Jackson Women’s Health Organization, which concerns Mississippi’s ban on abortion after 15 weeks. With six conservative justices who likely recognize that the precedent that overturned that law was wrongly decided, the justices should have already granted cert. That is, if they weren’t living in fear of the Biden administration and Democrats, and convinced by Roberts to hold back.
Similarly, the Court failed to pick up ten Second Amendment cases last summer that challenged severe restrictions on gun rights. Justice Clarence Thomas objected to the Court’s decision, saying, “One would think that such an onerous burden on a fundamental right would warrant this Court’s review.”
Until Democrats get the votes to pack the Court or Republicans gain control, Biden’s threat will loom over the Supreme Court, compromising its independence.