ANALYSIS: Americans Have Overwhelmingly Rejected Court-Packing — Is The Far Left Willing To Gamble The Midterms On A Losing Proposition?

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Virginia Kruta Associate Editor
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The American people have made it clear on a number of occasions that the majority oppose court-packing, but the far left doesn’t appear to be getting the message.

The idea of expanding the court is not exactly a new one – frustrated by the court’s opposition to key pieces of his New Deal legislation, former President Franklin Delano Roosevelt proposed the idea in February of 1937 in an apparent effort to create a workaround. His legislative plan eventually won over the existing court, however, and the Senate struck down his attempt to expand the court. (RELATED: FLASHBACK: Biden Called Packing The Court A ‘Bonehead’ Idea)

After then-Senate Majority Leader Mitch McConnell denied a hearing in 2016 to then-Supreme Court nominee Merrick Garland following the death of Justice Antonin Scalia, Democrats began to argue that, in doing so, Republicans were effectively “packing the court.” Those cries got louder when former President Donald Trump got to make two more appointments to the high court — Justices Brett Kavanaugh and Amy Coney Barrett — the latter of whom was appointed and confirmed just days before the 2020 presidential election.

The issue took over the final weeks of the campaign as reporters on both sides of the aisle asked President Joe Biden and Vice President Kamala Harris whether they planned to pack the court – and both responded in ways that indicated they were aware how unpopular the issue was with most Americans. Even liberal Justices Stephen Breyer and the late Ruth Bader Ginsburg voiced opposition to the idea.

Biden did not directly answer the question, saying that he did not want to make the election about that particular issue, but he did say that he would address the issue after he was elected.

Harris attempted to deflect a debate question about court-packing by fabricating a quote from former President Abraham Lincoln.

Even after they were sworn in, Biden’s plan to have a commission study the possibility of expanding the court was met with animosity from Republicans and concern from Independents. A Mason-Dixon poll from April, 2021, indicated that nearly three-fourths (72%) of Independents and 95% of Republicans opposed the idea that Biden could back a Democratic plan to expand the court. One-third of the Democrats surveyed also opposed the idea.

The Democratic plan, which House Judiciary Committee Chairman Jerry Nadler promoted as “unpacking the court,” drew support from the far left.

But Biden’s commission, which returned its report on the issue earlier this month, warned that expanding the court might provide a temporary advantage with regard to the Democrats’ agenda but could undermine the credibility of the court in the longer term.

Discussion materials released by the commission indicated a concern that any effort to expand the court would be seen as partisan and undermine the legitimacy proponents of the move claimed they were attempting to restore.

But the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy … Recent polls suggest that a majority of the public does not support Court expansion. And even some supporters of Court expansion acknowledged during the Commission’s public hearings, the reform … would be perceived by many as a partisan maneuver.

Some on the left still seem set on pushing for expansion, however, arguing that a failure to do so could destroy Biden’s agenda.

One question remains: would a concerted push for court expansion drive Independents away from Democrats – whose majorities in both chambers are likely too slim to survive such a shift – ahead of the potentially pivotal 2022 midterms?