A Naked Power Grab
By Ethan Hay
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.”- President Joseph R. Biden
As of April 9th, 2021, President Biden has signed an executive order creating a commission to study the issue of expanding the United States Supreme Court,(1) bringing to the forefront an issue that has remained largely unpopular amongst the general public since the issue was last polled in October of 2020, in the middle of Justice Amy Coney Barrett’s Supreme Court confirmation hearing.(2) Furthermore, the current number of Justices on the Supreme Court has not been changed for more than one hundred and fifty years.(3) However, within the first one hundred years of America’s inception as a nation, it has been subjected to changes.(4)
The Judiciary Act of 1789 set the original number at six justices.(5) The Judiciary act of 1801 passed by President John Adams, who had lost reelection, and a lame duck Federalist congress, reduced the size of the court to five Justices.(6) President Thomas Jefferson and his party, the Democratic Republicans, then repealed the act in 1801, thus restoring the Court to six members. They then added a seventh Justice when the Seventh Circuit court was created by congress, via the Seventh Circuit Act of 1807.(7) In 1837, President Andrew Jackson and Congress expanded the court from seven to nine Justices under the Eighth and Ninth Circuit Court Act of 1837, while also expanding the number of federal circuit courts in the process.(8) We’re not done yet, because during the American Civil War, the Tenth Circuit Act of 1863 was passed, thus creating the Tenth Circuit Court, and also adding a tenth Supreme Court Justice, the highest number of Justices at any point in time in American history.(9) There is reason to believe that the tenth Justice was added so as to limit the capacity of the Court to intervene in the war.(10) In 1866, the Judicial Circuits Act was passed by a Republican controlled congress, and signed into law by President Andrew Johnson, bringing the Courts number back down to seven,(11) while also inadvertently denying Johnson, who was an opponent of Reconstruction, the opportunity to nominate anyone to the Court.(12) It would remain unchanged until the 1869 Judiciary Act was passed and signed into law by President Ulysses S. Grant, bringing the number back to nine, where it has since stayed the same.(13)
However, the current move by the Biden regime appears to be nothing more than a blatant power grab by a Democratic party that has become more extreme since the 2016 presidential election. It also appears to be reminiscent of move made by President Franklin Delano Roosevelt. Upon winning a landslide victory in 1936,(14) Roosevelt proposed the Judicial Procedures Reform Bill of 1937, which sought to add six Justices to the court, and set an age limit of seventy for the Courts members, and several other things. Thankfully the original bill was defeated by a 70-20 vote,(15) as well as costing the Democratic party 72 congressional seats in the 1938 congressional election.(16) With the creation of this commission, President appears to be trying to emulate the long deceased FDR, because remember, Senator Bernie Sanders of Vermont said that Biden would be the most progressive president since FDR.(17) The difference is that this time it’s a very real possibility that the President and his party could succeed.
That being said, the move is facing opposition from the likes of liberal Supreme Court Justice Stephen Breyer, saying that the move would undermine ‘the trust that the court has gradually built,’ and even the President has long been opposed to it,(18) but changed his stance during the 2020 campaign. Even refusing to give an honest and straightforward answer, saying that he would answer that question ‘when the election is over.’(19) Also, the President has been opposed his entire senatorial career to efforts seeking to remove the filibuster, which would have to be discarded in order for the Court to be expanded, but he has only recently, due to political expediency, started to question its value since being elected president.(20) And the President is facing stiff opposition from within his own party; the most prevalent being West Virginia Senator Joe Manchin, who has said ‘there is no circumstance in which I will vote to eliminate or weaken the filibuster,’(21) Arizona Senator Krysten Sinema also came out in opposition to removing the filibuster, saying ‘don’t change the rules,’(22) members of the Democratic party have come out in firm opposition to the motion, and many other members are skeptical of the act.(23)
From a purely logical standpoint, at this time the removal of the filibuster seems doubtful, especially if Senator Manchin and Sinema stand firm, and if they do stand firm alongside their Republican colleagues, then the likelihood of the court being expanded seems extremely unlikely, and our freedoms may live to see another day.